Bill not drafted by TLC or Senate E&E.
Line and page numbers may not match official copy.
By Lewis of Orange H.B. No. 5
A BILL TO BE ENTITLED
1-1 AN ACT
1-2 relating to the development and management of the water resources
1-3 of the state; providing penalties.
1-4 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
1-5 ARTICLE 1. DROUGHT RESPONSE MANAGEMENT
1-6 SECTION 1.01. Subchapter C, Chapter 16, Water Code, is
1-7 amended by adding Section 16.060 to read as follows:
1-8 Sec. 16.060. STATE DROUGHT PLANNING. (a) The executive
1-9 administrator shall prepare, coordinate, and oversee the
1-10 development and implementation of a comprehensive state drought
1-11 plan. The board is the state agency primarily responsible for
1-12 ongoing drought and water supply monitoring, technical and
1-13 financial assistance for drought planning, and administrative
1-14 support of committee functions.
1-15 (b) The state drought plan shall provide for the initial
1-16 development and updating of effective regional and local drought
1-17 response plans.
1-18 (c) The board may provide cost-sharing financial assistance
1-19 from the research and planning fund to assist local governments in
1-20 the development of regional and local drought response plans.
1-21 (d) The drought planning and monitoring committee is
1-22 created. The committee is composed of one representative from each
1-23 of the following entities, appointed by the administrative head of
2-1 that entity:
2-2 (1) the board;
2-3 (2) the commission;
2-4 (3) the Parks and Wildlife Department;
2-5 (4) the division of emergency management in the office
2-6 of the governor;
2-7 (5) the Department of Agriculture; and
2-8 (6) any other entity designated by the governor.
2-9 (e) The representative of the board shall serve as chair of
2-10 the committee.
2-11 (f) The committee shall be responsible for:
2-12 (1) the assessment and public reporting of drought
2-13 monitoring and water supply information;
2-14 (2) advising the office of the governor on significant
2-15 drought concerns;
2-16 (3) recommending specific provisions for a defined
2-17 state response to drought-related disasters for inclusion in the
2-18 state emergency management plan;
2-19 (4) recommending specific provisions for water
2-20 management strategies to be used during droughts and included in
2-21 approved regional water management plans under Section 16.059;
2-22 (5) advising the board on preparation of the state
2-23 drought plan;
2-24 (6) ensuring effective coordination among state,
2-25 local, and federal agencies in drought-response planning; and
2-26 (7) establishing guidelines for the development of
2-27 effective regional and local drought response plans, taking into
2-28 account the provisions of water conservation plans developed under
2-29 Section 11.1271 and drought contingency plans developed under
3-1 Section 11.1272.
3-2 (g) In performing its duties under this section, the drought
3-3 planning and monitoring committee shall consider the following
3-4 factors when determining whether a drought exists for the purposes
3-5 of this section:
3-6 (1) meteorological conditions and forecasts;
3-7 (2) hydrological conditions and forecasts;
3-8 (3) water use and demand forecasts;
3-9 (4) water supply conditions and forecasts;
3-10 (5) the potential impacts of the water shortage on the
3-11 public health, safety, and welfare and on economic and
3-12 environmental resources; and
3-13 (6) other factors deemed appropriate by the committee.
3-14 SECTION 1.02. Subchapter D, Chapter 11, Water Code, is
3-15 amended by amending Section 11.1271 and adding Section 11.1272 to
3-16 read as follows:
3-17 Sec. 11.1271. ADDITIONAL REQUIREMENTS: WATER CONSERVATION
3-18 PLANS. (a) The commission may require the formulation and
3-19 submission of a water conservation plan and the adoption of
3-20 reasonable water conservation measures, as defined by Subdivision
3-21 (8)(B), Section 11.002, of this code.
3-22 (b) The commission may require the holder of an existing
3-23 permit, certified filing, or certificate of adjudication for the
3-24 appropriation of surface water in the amount of 200 acre-feet a
3-25 year or more to develop and implement a water conservation plan
3-26 that adopts reasonable water conservation measures, as defined by
3-27 Subdivision (8)(B), Section 11.002, of this code.
3-28 Sec. 11.1272. ADDITIONAL REQUIREMENTS: DROUGHT CONTINGENCY
3-29 PLANS FOR CERTAIN APPLICANTS AND WATER RIGHT HOLDERS. The
4-1 commission shall by rule require wholesale and retail public water
4-2 suppliers to develop drought contingency plans to be implemented
4-3 during periods of water shortages caused by drought.
4-4 SECTION 1.03. Subchapter C, Chapter 11, Water Code, is
4-5 amended by adding Sections 11.0841, 11.0842, and 11.0843 to read as
4-6 follows:
4-7 Sec. 11.0841. PRIVATE CIVIL REMEDY. Nothing in this chapter
4-8 affects the right of any private corporation or individual to
4-9 pursue any available common-law remedy to enforce a right or to
4-10 prevent or seek redress or compensation for the violation of a
4-11 right or otherwise redress an injury.
4-12 Sec. 11.0842. ADMINISTRATIVE PENALTY. (a) If a person
4-13 violates this chapter or a rule or order adopted or a water right
4-14 issued under this chapter, the commission may assess an
4-15 administrative penalty against that person as provided by this
4-16 section.
4-17 (b) The penalty may be in an amount not to exceed $10,000
4-18 for each day the person is in violation of this chapter or the
4-19 rule, order, or water right. Each day a violation continues may be
4-20 considered a separate violation for purposes of penalty assessment.
4-21 (c) In determining the amount of the penalty, the commission
4-22 shall consider:
4-23 (1) the nature, circumstances, extent, duration, and
4-24 gravity of the prohibited acts, with special emphasis on the
4-25 impairment of existing water rights or the hazard or potential
4-26 hazard created to the health, safety, or welfare of the public;
4-27 (2) the impact of the violation on the instream uses,
4-28 water quality, aquatic and wildlife habitat, or beneficial
4-29 freshwater inflows to bays and estuaries;
5-1 (3) with respect to the alleged violator:
5-2 (A) the history and extent of previous
5-3 violations;
5-4 (B) the degree of culpability, including whether
5-5 the violation was attributable to mechanical or electrical failures
5-6 and whether the violation could have been reasonably anticipated
5-7 and avoided;
5-8 (C) demonstrated good faith, including actions
5-9 taken by the alleged violator to rectify the cause of the violation
5-10 and to compensate affected persons;
5-11 (D) any economic benefit gained through the
5-12 violation; and
5-13 (E) the amount necessary to deter future
5-14 violations; and
5-15 (4) any other matters that justice may require.
5-16 (d) If, after examination of a possible violation and the
5-17 facts surrounding that possible violation, the executive director
5-18 concludes that a violation has occurred, the executive director may
5-19 issue a preliminary report stating the facts on which that
5-20 conclusion was based, recommending that an administrative penalty
5-21 under this section be imposed on the person charged, and
5-22 recommending the amount of the penalty. The executive director
5-23 shall base the recommended amount of the proposed penalty on the
5-24 factors provided by Subsection (c) of this section and shall
5-25 analyze each factor for the benefit of the commission.
5-26 (e) Not later than the 10th day after the date on which the
5-27 report is issued, the executive director shall give written notice
5-28 of the report to the person charged with the violation. The notice
5-29 shall include a brief summary of the charges, a statement of the
6-1 amount of the penalty recommended, and a statement of the right of
6-2 the person charged to a hearing on the occurrence of the violation,
6-3 the amount of the penalty, or both the occurrence of the violation
6-4 and the amount of the penalty.
6-5 (f) Not later than the 20th day after the date on which
6-6 notice is received, the person charged may either give to the
6-7 commission written consent to the executive director's report,
6-8 including the recommended penalty, or make a written request for a
6-9 hearing.
6-10 (g) If the person charged with the violation consents to the
6-11 penalty recommended by the executive director or fails to timely
6-12 respond to the notice, the commission by order shall either assess
6-13 the penalty or order a hearing to be held on the findings and
6-14 recommendations in the executive director's report. If the
6-15 commission assesses the penalty recommended by the report, the
6-16 commission shall give written notice of its decision to the person
6-17 charged.
6-18 (h) If the person charged requests or the commission orders
6-19 a hearing, the commission shall call a hearing and give notice of
6-20 the hearing. As a result of the hearing, the commission by order
6-21 either may find that a violation has occurred and may assess a
6-22 penalty, may find that a violation has occurred but that no penalty
6-23 should be assessed, or may find that no violation has occurred.
6-24 All proceedings under this subsection are subject to Chapter 2001,
6-25 Government Code. In making any penalty decision, the commission
6-26 shall analyze each of the factors provided by Subsection (c) of
6-27 this section.
6-28 (i) The commission shall give notice of its decision to the
6-29 person charged, and if the commission finds that a violation has
7-1 occurred and assesses an administrative penalty, the commission
7-2 shall give written notice to the person charged of its findings, of
7-3 the amount of the penalty, and of the person's right to judicial
7-4 review of the commission's order. If the commission is required to
7-5 give notice of a penalty under this subsection or Subsection (g) of
7-6 this section, the commission shall file notice of its decision in
7-7 the Texas Register not later than the 10th day after the date on
7-8 which the decision is adopted.
7-9 (j) Within the 30-day period immediately following the day
7-10 on which the commission's order is final, as provided by Subchapter
7-11 F, Chapter 2001, Government Code, the person charged with the
7-12 penalty shall:
7-13 (1) pay the penalty in full; or
7-14 (2) pay the amount of the penalty and file a petition
7-15 for judicial review contesting the occurrence of the violation, the
7-16 amount of the penalty, or both the occurrence of the violation and
7-17 the amount of the penalty; or
7-18 (3) without paying the amount of the penalty, file a
7-19 petition for judicial review contesting the occurrence of the
7-20 violation, the amount of the penalty, or both the occurrence of the
7-21 violation and the amount of the penalty.
7-22 (k) Within the 30-day period, a person who acts under
7-23 Subsection (j)(3) of this section may:
7-24 (1) stay enforcement of the penalty by:
7-25 (A) paying the amount of the penalty to the
7-26 court for placement in an escrow account; or
7-27 (B) giving to the court a supersedeas bond that
7-28 is approved by the court for the amount of the penalty and that is
7-29 effective until all judicial review of the commission's order is
8-1 final; or
8-2 (2) request the court to stay enforcement of the
8-3 penalty by:
8-4 (A) filing with the court a sworn affidavit of
8-5 the person stating that the person is financially unable to pay the
8-6 amount of the penalty and is financially unable to give the
8-7 supersedeas bond; and
8-8 (B) giving a copy of the affidavit to the
8-9 commission by certified mail.
8-10 (l) If the commission receives a copy of an affidavit under
8-11 Subsection (k)(2) of this section, it may file with the court
8-12 within five days after the date the copy is received a contest to
8-13 the affidavit. The court shall hold a hearing on the facts alleged
8-14 in the affidavit as soon as practicable and shall stay the
8-15 enforcement of the penalty on finding that the alleged facts are
8-16 true. The person who files an affidavit has the burden of proving
8-17 that the person is financially unable to pay the amount of the
8-18 penalty and to give a supersedeas bond.
8-19 (m) If the person does not pay the amount of the penalty and
8-20 the enforcement of the penalty is not stayed, the commission may
8-21 refer the matter to the attorney general for collection of the
8-22 amount of the penalty.
8-23 (n) Judicial review of the order or decision of the
8-24 commission assessing the penalty shall be under the substantial
8-25 evidence rule and shall be instituted by filing a petition with a
8-26 district court in Travis County, as provided by Subchapter G,
8-27 Chapter 2001, Government Code.
8-28 (o) A penalty collected under this section shall be
8-29 deposited in the state treasury to the credit of the general
9-1 revenue fund.
9-2 (p) Notwithstanding any other provision to the contrary, the
9-3 commission may compromise, modify, or remit, with or without
9-4 condition, any penalty imposed under this section.
9-5 (q) Payment of an administrative penalty under this section
9-6 shall be full and complete satisfaction of the violation for which
9-7 the administrative penalty is assessed and shall preclude any other
9-8 civil or criminal penalty for the same violation.
9-9 Sec. 11.0843. FIELD CITATION. (a) Upon witnessing or
9-10 receiving competent evidence of a violation of this chapter or a
9-11 rule or order adopted or a water right issued under this chapter,
9-12 the executive director or a watermaster may issue the alleged
9-13 violator a field citation alleging that a violation has occurred
9-14 and providing the alleged violator the option of either:
9-15 (1) without admitting to or denying the alleged
9-16 violation, paying an administrative penalty in accordance with a
9-17 predetermined penalty amount corresponding to the type of violation
9-18 and taking remedial action as provided in the citation; or
9-19 (2) requesting a hearing on the alleged violation in
9-20 accordance with Section 11.0842 of this code.
9-21 (b) A penalty collected by a watermaster under this section
9-22 shall be remitted to the commission to pay the necessary expenses
9-23 and compensation of the watermaster who issued the citation. At
9-24 the end of the fiscal year any unspent money remitted to the
9-25 commission by a watermaster under this subsection shall be
9-26 deposited in the state treasury to the credit of the general
9-27 revenue fund. A penalty collected by the executive director under
9-28 this section shall be deposited in the state treasury to the credit
9-29 of the general revenue fund.
10-1 SECTION 1.04. Section 11.139, Water Code, is amended to read
10-2 as follows:
10-3 Sec. 11.139. EMERGENCY AUTHORIZATIONS [PERMITS]. (a)
10-4 Except as provided by Section 11.148 of this code, the [The]
10-5 commission may grant an emergency permit, order, or amendment to an
10-6 existing water right [for the diversion and use of water] for an
10-7 initial [a] period of not more than 120 [30] days if it finds that
10-8 emergency conditions exist which present an imminent threat to
10-9 [threaten] the public health, safety, and welfare or the
10-10 environment and which override the necessity to comply with
10-11 established statutory procedures and there are no feasible
10-12 practicable alternatives to the emergency authorization. Such
10-13 emergency action may be renewed once for not longer than 60 days.
10-14 (b) A person desiring to obtain an emergency authorization
10-15 under this section shall submit to the commission a sworn
10-16 application containing the following information:
10-17 (1) a description of the condition of emergency
10-18 justifying the granting of the emergency authorization;
10-19 (2) a statement setting forth facts which support the
10-20 findings required under this section;
10-21 (3) an estimate of the dates on which the proposed
10-22 authorization should begin and end;
10-23 (4) a description of the action sought and the
10-24 activity proposed to be allowed, mandated, or prohibited; and
10-25 (5) any other statements or information required by
10-26 the commission.
10-27 (c) If the commission finds the applicant's statement made
10-28 under Subsection (b) of this section to be correct, the commission
10-29 may grant emergency authorizations under this section without
11-1 notice and hearing or with such notice and hearing as the
11-2 commission considers practicable under the circumstances.
11-3 (d) If the commission grants an emergency authorization
11-4 under this section without a hearing, the authorization shall fix a
11-5 time and place for a hearing to be held before the commission. The
11-6 hearing shall be held as soon after the emergency authorization is
11-7 granted as is practicable.
11-8 (e) At the hearing, the commission shall affirm, modify, or
11-9 set aside the emergency authorization. Any hearing on an emergency
11-10 authorization shall be conducted in accordance with Chapter 2001,
11-11 Government Code, and rules of the commission. Any set of
11-12 commission rules concerning a hearing or an emergency authorization
11-13 must include provisions for the presentation of evidence by the
11-14 applicant under oath, the presentation of rebuttal evidence, and
11-15 the cross-examination of witnesses.
11-16 (f) If an imminent threat to the public health, safety, and
11-17 welfare or the environment exists which requires emergency action
11-18 before the commission can take action as provided by Subsections
11-19 (a) through (c) of this section and there are no feasible
11-20 alternatives, the executive director may grant an emergency
11-21 authorization. If the executive director issues an emergency
11-22 authorization under this subsection, the commission shall hold a
11-23 hearing as provided for in Subsection (d) of this section as soon
11-24 as practicable but in no event later than 10 days after issuance of
11-25 the authorization to affirm, modify, or set aside the
11-26 authorization. The requirements of Subsection (b) of this section
11-27 shall be satisfied by the applicant on or before such hearing date.
11-28 (g) The requirements of Section 11.132 of this code relating
11-29 to the time for notice, newspaper notice, and method of giving a
12-1 person notice do not apply to a hearing held on an application for
12-2 an emergency authorization under this section, but such general
12-3 notice of the hearing shall be given as the commission, under
12-4 Subsections (c) and (e) of this section, considers practicable
12-5 under the circumstances.
12-6 (h) The commission may grant an emergency authorization
12-7 under this section for the temporary transfer and use of all or
12-8 part of a surface water right for other than domestic or municipal
12-9 use to a retail or wholesale water supplier for domestic or
12-10 municipal use. In addition to the requirements contained in
12-11 Subsection (b) of this section, the commission may direct that the
12-12 applicant will timely pay the amounts for which the applicant may
12-13 be potentially liable under this subsection and will fully
12-14 indemnify and hold harmless the state, the executive director, and
12-15 the commission from any and all liability for the authorization
12-16 sought. The commission may order bond or other surety in a form
12-17 acceptable to the commission as a condition for such emergency
12-18 authorization.
12-19 (i) The person granted an emergency authorization under
12-20 Subsection (h) of this section is liable to the owner from whom the
12-21 use is transferred for the fair market value of the water
12-22 transferred as well as for any damages proximately caused by the
12-23 transfer of use. If, within 60 days of the termination of the
12-24 authorization, the parties do not agree on the amount due, or if
12-25 full payment is not made, either party may file a complaint with
12-26 the commission to determine the amount due. The commission shall
12-27 adopt rules establishing a dispute resolution procedure for a
12-28 complaint filed under this subsection. After exhausting all
12-29 administrative remedies under this subsection, an aggrieved party
13-1 may file suit to recover or determine the amount due in a district
13-2 court in the county where the diversion point or points of the
13-3 surface water right which use is being transferred is located. The
13-4 prevailing party in a suit filed under this subsection is entitled
13-5 to recover court costs and reasonable attorney's fees.
13-6 (j) [An emergency permit may be granted for a period of not
13-7 more than 30 days, and no extension or additional emergency permit
13-8 may be granted at the expiration of the original permit.]
13-9 [(c) An emergency permit may be granted under this section
13-10 without the necessity to comply with statutory and other procedures
13-11 required for granting other permits issued by the commission.]
13-12 [(d)] The commission may prescribe rules and adopt fees
13-13 which are necessary to carry out the provisions of this section.
13-14 (k) [(e)] An emergency authorization [permit] does not vest
13-15 in the grantee [permittee] any right to the diversion, impoundment,
13-16 or [and] use of water and shall expire and be cancelled in
13-17 accordance with its terms.
13-18 SECTION 1.05. Subsection (c), Section 12.052, Water Code, is
13-19 amended to read as follows:
13-20 (c) If the owner of a dam that is required to be
13-21 constructed, reconstructed, repaired, or removed in order to comply
13-22 with the rules and orders promulgated under Subsection (a) of this
13-23 section wilfully fails or refuses to comply within the 30-day
13-24 period following the date of the commission's order to do so or if
13-25 a person wilfully fails to comply with any rule or other order
13-26 issued by the commission under this section within the 30-day
13-27 period following the effective date of the order, he is liable to a
13-28 penalty of not more than $25,000 [$1,000] a day for each day he
13-29 continues to violate this section. The state may recover the
14-1 penalty by suit brought for that purpose in the district court of
14-2 Travis County.
14-3 SECTION 1.06. Subchapter C, Chapter 12, Water Code, is
14-4 amended by adding Sections 12.053 and 12.054 to read as follows:
14-5 Sec. 12.053. ADMINISTRATIVE PENALTY. (a) If a person
14-6 violates a rule or order adopted under Section 12.052 of this code,
14-7 the commission may assess an administrative penalty against that
14-8 person as provided by this section.
14-9 (b) The penalty may be in an amount not to exceed $25,000
14-10 for each day the person is in violation of the rule or order. Each
14-11 day a violation continues may be considered a separate violation
14-12 for purposes of penalty assessment.
14-13 (c) In determining the amount of the penalty, the commission
14-14 shall consider:
14-15 (1) the nature, circumstances, extent, duration, and
14-16 gravity of the prohibited acts, with special emphasis on the hazard
14-17 or potential hazard created to the health, safety, or welfare of
14-18 the public;
14-19 (2) with respect to the alleged violator:
14-20 (A) the history and extent of previous
14-21 violations;
14-22 (B) the degree of culpability, including whether
14-23 the violation was attributable to mechanical or electrical failures
14-24 and whether the violation could have been reasonably anticipated
14-25 and avoided;
14-26 (C) demonstrated good faith, including actions
14-27 taken by the alleged violator to rectify the cause of the violation
14-28 and to compensate affected persons;
14-29 (D) any economic benefit gained through the
15-1 violation; and
15-2 (E) the amount necessary to deter future
15-3 violations; and
15-4 (3) any other matters that justice may require.
15-5 (d) If, after examination of a possible violation and the
15-6 facts surrounding that possible violation, the executive director
15-7 concludes that a violation has occurred, the executive director may
15-8 issue a preliminary report stating the facts on which that
15-9 conclusion was based, recommending that an administrative penalty
15-10 under this section be imposed on the person charged, and
15-11 recommending the amount of the penalty. The executive director
15-12 shall base the recommended amount of the proposed penalty on the
15-13 factors provided by Subsection (c) of this section and shall
15-14 analyze each factor for the benefit of the commission.
15-15 (e) Not later than the 10th day after the date on which the
15-16 report is issued, the executive director shall give written notice
15-17 of the report to the person charged with the violation. The notice
15-18 shall include a brief summary of the charges, a statement of the
15-19 amount of the penalty recommended, and a statement of the right of
15-20 the person charged to a hearing on the occurrence of the violation,
15-21 the amount of the penalty, or both the occurrence of the violation
15-22 and the amount of the penalty.
15-23 (f) Not later than the 20th day after the date on which
15-24 notice is received, the person charged may either give to the
15-25 commission written consent to the executive director's report,
15-26 including the recommended penalty, or make a written request for a
15-27 hearing.
15-28 (g) If the person charged with the violation consents to the
15-29 penalty recommended by the executive director or fails to timely
16-1 respond to the notice, the commission by order shall either assess
16-2 the penalty or order a hearing to be held on the findings and
16-3 recommendations in the executive director's report. If the
16-4 commission assesses the penalty recommended by the report, the
16-5 commission shall give written notice of its decision to the person
16-6 charged.
16-7 (h) If the person charged requests or the commission orders
16-8 a hearing, the commission shall call a hearing and give notice of
16-9 the hearing. As a result of the hearing, the commission by order
16-10 either may find that a violation has occurred and may assess a
16-11 penalty, may find that a violation has occurred but that no penalty
16-12 should be assessed, or may find that no violation has occurred.
16-13 All proceedings under this subsection are subject to Chapter 2001,
16-14 Government Code. In making any penalty decision, the commission
16-15 shall analyze each of the factors provided by Subsection (c) of
16-16 this section.
16-17 (i) The commission shall give notice of its decision to the
16-18 person charged, and if the commission finds that a violation has
16-19 occurred and assesses a penalty, the commission shall give written
16-20 notice to the person charged of its findings, of the amount of the
16-21 penalty, and of the person's right to judicial review of the
16-22 commission's order. If the commission is required to give notice
16-23 of a penalty under this subsection or Subsection (g) of this
16-24 section, the commission shall file notice of its decision in the
16-25 Texas Register not later than the 10th day after the date on which
16-26 the decision is adopted.
16-27 (j) Within the 30-day period immediately following the day
16-28 on which the commission's order is final, as provided by Subchapter
16-29 F, Chapter 2001, Government Code, the person charged with the
17-1 penalty shall:
17-2 (1) pay the penalty in full; or
17-3 (2) pay the amount of the penalty and file a petition
17-4 for judicial review contesting the occurrence of the violation, the
17-5 amount of the penalty, or both the occurrence of the violation and
17-6 the amount of the penalty; or
17-7 (3) without paying the amount of the penalty, file a
17-8 petition for judicial review contesting the occurrence of the
17-9 violation, the amount of the penalty, or both the occurrence of the
17-10 violation and the amount of the penalty.
17-11 (k) Within the 30-day period, a person who acts under
17-12 Subsection (j)(3) of this section may:
17-13 (1) stay enforcement of the penalty by:
17-14 (A) paying the amount of the penalty to the
17-15 court for placement in an escrow account; or
17-16 (B) giving to the court a supersedeas bond that
17-17 is approved by the court for the amount of the penalty and that is
17-18 effective until all judicial review of the commission's order is
17-19 final; or
17-20 (2) request the court to stay enforcement of the
17-21 penalty by:
17-22 (A) filing with the court a sworn affidavit of
17-23 the person stating that the person is financially unable to pay the
17-24 amount of the penalty and is financially unable to give the
17-25 supersedeas bond; and
17-26 (B) giving a copy of the affidavit to the
17-27 commission by certified mail.
17-28 (l) If the commission receives a copy of an affidavit under
17-29 Subsection (k)(2) of this section, it may file with the court
18-1 within five days after the date the copy is received a contest to
18-2 the affidavit. The court shall hold a hearing on the facts alleged
18-3 in the affidavit as soon as practicable and shall stay the
18-4 enforcement of the penalty on finding that the alleged facts are
18-5 true. The person who files an affidavit has the burden of proving
18-6 that the person is financially unable to pay the amount of the
18-7 penalty and to give a supersedeas bond.
18-8 (m) If the person does not pay the amount of the penalty and
18-9 the enforcement of the penalty is not stayed, the commission may
18-10 refer the matter to the attorney general for collection of the
18-11 amount of the penalty.
18-12 (n) Judicial review of the order or decision of the
18-13 commission assessing the penalty shall be under the substantial
18-14 evidence rule and shall be instituted by filing a petition with a
18-15 district court in Travis County, as provided by Subchapter G,
18-16 Chapter 2001, Government Code.
18-17 (o) A penalty collected under this section shall be
18-18 deposited in the state treasury to the credit of the general
18-19 revenue fund.
18-20 (p) Notwithstanding any other provision to the contrary, the
18-21 commission may compromise, modify, or remit, with or without
18-22 condition, any penalty imposed under this section.
18-23 (q) Payment of an administrative penalty under this section
18-24 shall be full and complete satisfaction of the violation for which
18-25 the administrative penalty is assessed and shall preclude any other
18-26 civil or criminal penalty for the same violation.
18-27 Sec. 12.054. PRIVATE CIVIL REMEDY. Nothing in this chapter
18-28 affects the right of any private corporation or individual to
18-29 pursue any available common-law remedy to enforce a right or to
19-1 prevent or seek redress or compensation for the violation of a
19-2 right or otherwise redress an injury.
19-3 SECTION 1.07. Section 16.236, Water Code, is amended to read
19-4 as follows:
19-5 Sec. 16.236. CONSTRUCTION OF LEVEE WITHOUT APPROVAL OF
19-6 PLANS; LEVEE SAFETY. (a) No person may construct, attempt to
19-7 construct, cause to be constructed, maintain, or cause to be
19-8 maintained any levee or other such improvement on, along, or near
19-9 any stream of this state that is subject to floods, freshets, or
19-10 overflows so as to control, regulate, or otherwise change the
19-11 floodwater of the stream without first obtaining approval of the
19-12 plans by the commission.
19-13 (b) The commission shall make and enforce rules and orders
19-14 and shall perform all other acts necessary to provide for the safe
19-15 construction, maintenance, repair, and removal of levees located in
19-16 this state.
19-17 (c) Rules and orders of the commission shall be adopted or
19-18 issued only after proper notice and hearing as provided in the
19-19 rules of the commission.
19-20 (d) If the owner of a levee that is required to be
19-21 constructed, reconstructed, repaired, or removed to comply with the
19-22 rules and orders promulgated under this section wilfully fails or
19-23 refuses to comply within the 30-day period following the date of an
19-24 order of the commission requiring such action or compliance or if a
19-25 person wilfully fails to comply with any rule or order issued by
19-26 the commission under this section within the 30-day period
19-27 following the effective date of the order, the person is liable for
19-28 a penalty of not more than $25,000 a day for each day the person
19-29 continues to violate this section. The state may recover the
20-1 penalty by suit brought for that purpose in a district court of
20-2 Travis County.
20-3 (e) If the commission determines that the existing condition
20-4 of a levee is creating or will cause extensive or severe property
20-5 damage or economic loss to others or is posing an immediate and
20-6 serious threat to human life or health and that other procedures
20-7 available to the commission to remedy or prevent such property
20-8 damage or economic loss will result in unreasonable delay, the
20-9 commission may issue an emergency order, either mandatory or
20-10 prohibitory in nature, directing the owner of the levee to repair,
20-11 modify, maintain, dewater, or remove the levee which the commission
20-12 determines is unsafe. The emergency order may be issued without
20-13 notice to the levee owner or with notice the commission considers
20-14 practicable under the circumstances. The notice does not have to
20-15 comply with Chapter 2001, Government Code.
20-16 (f) If the commission issues an emergency order under
20-17 authority of this section without notice to the levee owner, the
20-18 commission shall fix a time and place for a hearing, to be held as
20-19 soon as practicable, to affirm, modify, or set aside the emergency
20-20 order. The notice does not have to comply with Chapter 2001,
20-21 Government Code. If the nature of the commission's action requires
20-22 further proceedings, those proceedings shall be conducted, as
20-23 appropriate, under Chapter 2001, Government Code.
20-24 (g) Nothing in this section or in rules or orders adopted by
20-25 the commission shall be construed to relieve an owner or operator
20-26 of a levee of the legal duties, obligations, or liabilities
20-27 incident to ownership or operation.
20-28 (h) Any person who violates any provision of Subsection (a)
20-29 of this section is guilty of a Class C misdemeanor [and upon
21-1 conviction is punishable by a fine of not more than $100]. A
21-2 separate offense is committed each day a structure constructed in
21-3 violation of this section is maintained.
21-4 (i) Subsection (a) of this [(c) At the request of the
21-5 executive director, the attorney general shall file suit in a
21-6 district court of Travis County to enjoin any violation or
21-7 threatened violation of this section. In the suit, the attorney
21-8 general may seek to have the illegal levee or other improvement
21-9 removed and the preexisting conditions restored and may also
21-10 collect civil penalties of up to $100 a day for each day a
21-11 violation occurs.]
21-12 [(d) This] section does not apply to:
21-13 (1) dams permitted by the commission or recognized as
21-14 valid by final decree in any proceeding begun under Subchapter G,
21-15 Chapter 11, of this code;
21-16 (2) dams authorized by Section 11.142 of this code;
21-17 (3) a levee or other improvement within the corporate
21-18 limits of a city or town provided: (a) plans for the construction
21-19 or maintenance or both must be approved by the city or town as a
21-20 condition precedent to starting the project and (b) the city or
21-21 town requires that such plans be in substantial compliance with
21-22 rules and standards adopted by the commission; or
21-23 (4) a levee or other improvement within the boundaries
21-24 of any political subdivision which has qualified for the National
21-25 Flood Insurance Program as authorized by the National Flood
21-26 Insurance Act of 1968 (Title 42, U.S.C., Sections 4001-4127)
21-27 provided: (a) plans for the construction or maintenance or both
21-28 must be approved by the political subdivision which is
21-29 participating in the national flood insurance program as a
22-1 condition precedent to starting the project and (b) the political
22-2 subdivision requires that such plans be in substantial compliance
22-3 with rules and standards adopted by the commission;
22-4 (5) projects implementing soil and water conservation
22-5 practices set forth in a conservation plan with a landowner or
22-6 operator and approved by the governing board of a soil and water
22-7 conservation district organized under the State Soil Conservation
22-8 Law, as amended (Article 165a-4, Vernon's Texas Civil Statutes),
22-9 provided that the governing board finds the practices do not
22-10 significantly affect stream flooding conditions on, along, or near
22-11 a state stream.
22-12 (j) [(e)] On projects located within the corporate limits of
22-13 a city or town or within the boundaries of any political
22-14 subdivision which are exempt from the provisions of Subsection (a)
22-15 of this section by Subdivision (3) or (4) of Subsection (i) of this
22-16 section [(d) above], any person whose property is located outside
22-17 of the corporate limits of such city or town or of the boundaries
22-18 of such a political subdivision and whose property is affected or
22-19 potentially affected by the effect of the project on the
22-20 floodwaters of the stream may appeal the decision of such political
22-21 subdivision. The appeal shall be in writing and shall specify the
22-22 grounds therefor and a copy shall be sent by certified mail to the
22-23 project applicant and to the city or town or such political
22-24 subdivision. The timely filing of such an appeal with the
22-25 executive director suspends the decision of the city or town or
22-26 political subdivision until a final decision is rendered by the
22-27 commission. The executive director shall review the complaint and
22-28 investigate the facts surrounding the nature of the complaint. If
22-29 the executive director finds that the complaint is frivolous or
23-1 nonmeritorious or made solely for purposes of harassment or delay,
23-2 then he shall dismiss the appeal. Otherwise, the executive
23-3 director shall refer the appeal to the commission which shall after
23-4 due notice hold a hearing to determine whether the project should
23-5 be approved using the standards established by the commission and
23-6 shall hear such appeal de novo under the procedural rules
23-7 established by the commission for other reclamation projects.
23-8 SECTION 1.08. Subchapter G, Chapter 16, Water Code, is
23-9 amended by adding Sections 16.237 and 16.238 to read as follows:
23-10 Sec. 16.237. ADMINISTRATIVE PENALTY. (a) If a person
23-11 violates a commission rule or order adopted under Section 16.236 of
23-12 this code, the commission may assess an administrative penalty
23-13 against that person as provided by this section.
23-14 (b) The penalty may be in an amount not to exceed $25,000
23-15 for each day the person is in violation of the rule or order. Each
23-16 day a violation continues may be considered a separate violation
23-17 for purposes of penalty assessment.
23-18 (c) In determining the amount of the penalty, the commission
23-19 shall consider:
23-20 (1) the nature, circumstances, extent, duration, and
23-21 gravity of the prohibited acts, with special emphasis on the hazard
23-22 or potential hazard created to the health, safety, or welfare of
23-23 the public;
23-24 (2) with respect to the alleged violator:
23-25 (A) the history and extent of previous
23-26 violations;
23-27 (B) the degree of culpability, including whether
23-28 the violation was attributable to mechanical or electrical failures
23-29 and whether the violation could have been reasonably anticipated
24-1 and avoided;
24-2 (C) demonstrated good faith, including actions
24-3 taken by the alleged violator to rectify the cause of the violation
24-4 and to compensate affected persons;
24-5 (D) any economic benefit gained through the
24-6 violation; and
24-7 (E) the amount necessary to deter future
24-8 violations; and
24-9 (3) any other matters that justice may require.
24-10 (d) If, after examination of a possible violation and the
24-11 facts surrounding that possible violation, the executive director
24-12 concludes that a violation has occurred, the executive director may
24-13 issue a preliminary report stating the facts on which that
24-14 conclusion was based, recommending that an administrative penalty
24-15 under this section be imposed on the person charged, and
24-16 recommending the amount of the penalty. The executive director
24-17 shall base the recommended amount of the proposed penalty on the
24-18 factors provided by Subsection (c) of this section and shall
24-19 analyze each factor for the benefit of the commission.
24-20 (e) Not later than the 10th day after the date on which the
24-21 report is issued, the executive director shall give written notice
24-22 of the report to the person charged with the violation. The notice
24-23 shall include a brief summary of the charges, a statement of the
24-24 amount of the penalty recommended, and a statement of the right of
24-25 the person charged to a hearing on the occurrence of the violation,
24-26 the amount of the penalty, or both the occurrence of the violation
24-27 and the amount of the penalty.
24-28 (f) Not later than the 20th day after the date on which
24-29 notice is received, the person charged may either give to the
25-1 commission written consent to the executive director's report,
25-2 including the recommended penalty, or make a written request for a
25-3 hearing.
25-4 (g) If the person charged with the violation consents to the
25-5 penalty recommended by the executive director or fails to timely
25-6 respond to the notice, the commission by order shall either assess
25-7 that penalty or order a hearing to be held on the findings and
25-8 recommendations in the executive director's report. If the
25-9 commission assesses the penalty recommended by the report, the
25-10 commission shall give written notice of its decision to the person
25-11 charged.
25-12 (h) If the person charged requests or the commission orders
25-13 a hearing, the commission shall call a hearing and give notice of
25-14 the hearing. As a result of the hearing, the commission by order
25-15 either may find that a violation has occurred and may assess a
25-16 penalty, may find that a violation has occurred but that no penalty
25-17 should be assessed, or may find that no violation has occurred.
25-18 All proceedings under this subsection are subject to Chapter 2001,
25-19 Government Code. In making any penalty decision, the commission
25-20 shall analyze each of the factors provided by Subsection (c) of
25-21 this section.
25-22 (i) The commission shall give notice of its decision to the
25-23 person charged, and if the commission finds that a violation has
25-24 occurred and assesses an administrative penalty, the commission
25-25 shall give written notice to the person charged of its findings, of
25-26 the amount of the penalty, and of the person's right to judicial
25-27 review of the commission's order. If the commission is required to
25-28 give notice of a penalty under this subsection or Subsection (g) of
25-29 this section, the commission shall file notice of its decision in
26-1 the Texas Register not later than the 10th day after the date on
26-2 which the decision is adopted.
26-3 (j) Within the 30-day period immediately following the day
26-4 on which the commission's order is final, as provided by Subchapter
26-5 F, Chapter 2001, Government Code, the person charged with the
26-6 penalty shall:
26-7 (1) pay the penalty in full; or
26-8 (2) pay the amount of the penalty and file a petition
26-9 for judicial review contesting the occurrence of the violation, the
26-10 amount of the penalty, or both the occurrence of the violation and
26-11 the amount of the penalty; or
26-12 (3) without paying the amount of the penalty, file a
26-13 petition for judicial review contesting the occurrence of the
26-14 violation, the amount of the penalty, or both the occurrence of the
26-15 violation and the amount of the penalty.
26-16 (k) Within the 30-day period, a person who acts under
26-17 Subsection (j)(3) of this section may:
26-18 (1) stay enforcement of the penalty by:
26-19 (A) paying the amount of the penalty to the
26-20 court for placement in an escrow account; or
26-21 (B) giving to the court a supersedeas bond that
26-22 is approved by the court for the amount of the penalty and that is
26-23 effective until all judicial review of the commission's order is
26-24 final; or
26-25 (2) request the court to stay enforcement of the
26-26 penalty by:
26-27 (A) filing with the court a sworn affidavit of
26-28 the person stating that the person is financially unable to pay the
26-29 amount of the penalty and is financially unable to give the
27-1 supersedeas bond; and
27-2 (B) giving a copy of the affidavit to the
27-3 commission by certified mail.
27-4 (l) If the commission receives a copy of an affidavit under
27-5 Subsection (k)(2) of this section, it may file with the court
27-6 within five days after the date the copy is received a contest to
27-7 the affidavit. The court shall hold a hearing on the facts alleged
27-8 in the affidavit as soon as practicable and shall stay the
27-9 enforcement of the penalty on finding that the alleged facts are
27-10 true. The person who files an affidavit has the burden of proving
27-11 that the person is financially unable to pay the amount of the
27-12 penalty and to give a supersedeas bond.
27-13 (m) If the person does not pay the amount of the penalty and
27-14 the enforcement of the penalty is not stayed, the commission may
27-15 refer the matter to the attorney general for collection of the
27-16 amount of the penalty.
27-17 (n) Judicial review of the order or decision of the
27-18 commission assessing the penalty shall be under the substantial
27-19 evidence rule and shall be instituted by filing a petition with a
27-20 district court in Travis County, as provided by Subchapter G,
27-21 Chapter 2001, Government Code.
27-22 (o) A penalty collected under this section shall be
27-23 deposited in the state treasury to the credit of the general
27-24 revenue fund.
27-25 (p) Notwithstanding any other provision to the contrary, the
27-26 commission may compromise, modify, or remit, with or without
27-27 condition, any penalty imposed under this section.
27-28 (q) Payment of an administrative penalty under this section
27-29 shall be full and complete satisfaction of the violation for which
28-1 the administrative penalty is assessed and shall preclude any other
28-2 civil or criminal penalty for the same violation.
28-3 Sec. 16.238. PRIVATE CIVIL REMEDY. Nothing in this chapter
28-4 affects the right of any private corporation or individual to
28-5 pursue any available common-law remedy to enforce a right or to
28-6 prevent or seek redress or compensation for the violation of a
28-7 right or otherwise redress an injury.
28-8 ARTICLE 2. WATER MANAGEMENT, MARKETING, AND TRANSFERS
28-9 SECTION 2.01. Section 791.026, Government Code, is amended
28-10 to read as follows:
28-11 Sec. 791.026. CONTRACTS FOR WATER SUPPLY AND WASTEWATER
28-12 TREATMENT FACILITIES. (a) A municipality, district, or river
28-13 authority of this state may contract with another municipality,
28-14 district, or river authority of this state to obtain or provide
28-15 part or all of:
28-16 (1) water supply or wastewater treatment facilities;
28-17 or
28-18 (2) a lease or operation of water supply facilities or
28-19 wastewater treatment facilities.
28-20 (b) The contract may provide that the municipality,
28-21 district, or river authority obtaining one of the services may not
28-22 obtain those services from a source other than a contracting party,
28-23 except as provided by the contract.
28-24 (c) If a contract includes a term described by Subsection
28-25 (b), payments made under the contract are the paying party's
28-26 operating expenses for its water supply system, wastewater
28-27 treatment facilities, or both.
28-28 (d) The contract may:
28-29 (1) contain terms and extend for any period on which
29-1 the parties agree; [and]
29-2 (2) require the purchaser to develop alternative or
29-3 replacement supplies prior to the expiration date of the contract
29-4 and may provide for enforcement of such terms by court order; and
29-5 (3) provide that it will continue in effect until
29-6 bonds specified by the contract and any refunding bonds issued to
29-7 pay those bonds are paid.
29-8 (e) Where a contract sets forth explicit expiration
29-9 provisions, no continuation of the service obligation will be
29-10 implied.
29-11 (f) Tax revenue may not be pledged to the payment of amounts
29-12 agreed to be paid under the contract.
29-13 (g) [(f)] The powers granted by this section prevail over a
29-14 limitation contained in another law.
29-15 SECTION 2.02. Section 11.002, Water Code, is amended by
29-16 adding Subdivisions (9) and (10) to read as follows:
29-17 (9) "Developed water" means:
29-18 (A) groundwater that is in a watercourse or
29-19 stream, that would not be in the watercourse or stream but for the
29-20 efforts of the developer, and that is intended for subsequent
29-21 diversion and use by the developer; and
29-22 (B) surface water obtained through an approved
29-23 interbasin transfer of water that is in a watercourse or stream,
29-24 that would not be in the watercourse or stream but for the efforts
29-25 of the developer, and that is intended for subsequent diversion and
29-26 use by the developer.
29-27 (10) "Surplus water" means water in excess of the
29-28 initial or continued beneficial use of the appropriator and not
29-29 consumed or used beneficially for the purpose authorized by law.
30-1 SECTION 2.03. Subsection (e), Section 11.023, Water Code, is
30-2 amended to read as follows:
30-3 (e) The amount of water appropriated for each purpose
30-4 mentioned in this section shall be specifically appropriated for
30-5 that purpose, subject to the preferences prescribed in Section
30-6 11.024 of this code. The commission may authorize appropriation of
30-7 a single amount or volume of water for more than one purpose of
30-8 use. In the event that a single amount or volume of water is
30-9 appropriated for more than one purpose of use, the total amount of
30-10 water actually diverted for all of the authorized purposes may not
30-11 exceed the total amount of water appropriated.
30-12 SECTION 2.04. Section 11.036, Water Code, is amended to read
30-13 as follows:
30-14 Sec. 11.036. CONSERVED OR STORED WATER: SUPPLY CONTRACT.
30-15 (a) A person, association of persons, corporation, or water
30-16 improvement or irrigation district having in possession and control
30-17 any storm water, floodwater, or rainwater that is conserved or
30-18 stored as authorized by this chapter may contract to supply the
30-19 water to any person, association of persons, corporation, or water
30-20 improvement or irrigation district having the right to acquire use
30-21 of the water.
30-22 (b) The price and terms of the contract shall be just and
30-23 reasonable and without discrimination, and the contract is subject
30-24 to the same revision and control as provided in this code for other
30-25 water rates and charges. If the contract sets forth explicit
30-26 expiration provisions, no continuation of the service obligation
30-27 will be implied.
30-28 (c) The terms of a contract may expressly provide that the
30-29 person using the stored or conserved water is required to develop
31-1 alternative or replacement supplies prior to the expiration of the
31-2 contract and may further provide for enforcement of such terms by
31-3 court order.
31-4 (d) If any person uses the stored or conserved water without
31-5 first entering into a contract with the party that conserved or
31-6 stored it, the user shall pay for the use at a rate determined by
31-7 the commission to be just and reasonable, subject to court review
31-8 as in other cases.
31-9 SECTION 2.05. Subsection (a), Section 11.041, Water Code, is
31-10 amended to read as follows:
31-11 (a) Any person entitled to receive or use water from any
31-12 canal, ditch, flume, lateral, dam, reservoir, or lake or from any
31-13 conserved or stored supply may present to the commission a written
31-14 petition showing:
31-15 (1) that he is entitled to receive or use the water;
31-16 (2) that he is willing to comply with all reasonable
31-17 contractual provisions;
31-18 (3) that he is willing and able to pay a just and
31-19 reasonable price for the water;
31-20 (4) [(3)] that the party owning or controlling the
31-21 water supply has water not contracted to others and available for
31-22 the petitioner's use; and
31-23 (5) [(4)] that the party owning or controlling the
31-24 water supply fails or refuses to supply the available water to the
31-25 petitioner, or that the price or rental demanded for the available
31-26 water is not reasonable and just or is discriminatory.
31-27 SECTION 2.06. Section 11.042, Water Code, is amended to read
31-28 as follows:
31-29 Sec. 11.042. DELIVERING WATER DOWN BANKS AND BEDS.
32-1 (a) Under rules prescribed by the commission, a person,
32-2 association of persons, corporation, or water improvement or
32-3 irrigation district supplying stored or conserved water under
32-4 contract as provided in this chapter may use the bank and bed of
32-5 any flowing natural stream in the state to convey the water from
32-6 the place of storage to the place of use or to the diversion plant
32-7 of the appropriator. The commission shall prescribe rules for this
32-8 purpose.
32-9 (b) A person who wishes to convey developed water in a
32-10 watercourse or stream must obtain the prior approval of the
32-11 commission through a bed and banks authorization. Such
32-12 authorization shall ensure that an unlawful appropriation of water
32-13 does not occur by allowing only the amount of developed water put
32-14 into the watercourse or stream to be diverted, less carriage
32-15 losses. Developed water discharged into a watercourse or stream
32-16 must also meet all applicable water quality standards, and the
32-17 water and its discharge and conveyance including diversion rates
32-18 and location point may not otherwise cause adverse environmental
32-19 impacts. Authorizations under this section and water quality
32-20 authorizations may be approved in a consolidated permit proceeding.
32-21 (c) A person who has discharged groundwater into a
32-22 watercourse or stream and who subsequently wishes to divert and use
32-23 such water must first obtain authorization for the diversion and
32-24 use from the commission subject to special conditions as necessary
32-25 to protect existing water rights, instream uses, and freshwater
32-26 inflows to bays and estuaries.
32-27 SECTION 2.07. Section 11.046, Water Code, is amended to read
32-28 as follows:
32-29 Sec. 11.046. RETURN UNUSED WATER. (a) A person who takes
33-1 or diverts water from a watercourse or [running] stream for the
33-2 purposes authorized by this code shall conduct surplus water back
33-3 to the watercourse or stream from which it was taken if the water
33-4 can be returned by gravity flow or mechanical means and it is
33-5 reasonably practicable to do so.
33-6 (b) In granting an application for a water right, the
33-7 commission may include conditions in the water right providing for
33-8 the return of surplus water, in a specific amount or percentage of
33-9 water diverted, and the return point on the watercourse or stream
33-10 as necessary to protect senior downstream water rights or provide
33-11 flows for instream uses or bays and estuaries.
33-12 (c) Except as specifically provided otherwise in the water
33-13 right, water appropriated under a water right may, prior to its
33-14 release into a watercourse or stream, be beneficially used and
33-15 reused by the water right holder for the purposes and locations of
33-16 use provided in the water right. Once water has been diverted
33-17 under a water right and then returned to a watercourse or stream,
33-18 however, it is considered surplus water and therefore subject to
33-19 appropriation by others unless expressly provided otherwise in the
33-20 water right.
33-21 SECTION 2.08. Section 11.085, Water Code, is amended to read
33-22 as follows:
33-23 Sec. 11.085. INTERBASIN [INTERWATERSHED] TRANSFERS. (a) No
33-24 person may take or divert any state [of the] water from a river
33-25 basin [of the ordinary flow, underflow, or storm flow of any
33-26 stream, watercourse, or watershed] in this state and transfer such
33-27 water to [into] any other river basin [natural stream, watercourse,
33-28 or watershed to the prejudice of any person or property situated
33-29 within the watershed from which the water is proposed to be taken
34-1 or diverted.]
34-2 [(b) No person may transfer water from one watershed to
34-3 another] without first applying for and receiving a water right or
34-4 an amendment to a water right [permit] from the commission [to do
34-5 so. Before issuing such a permit, the commission shall hold a
34-6 hearing to determine the rights that might be affected by the
34-7 transfer. The commission shall give notice and hold the hearing in
34-8 the manner prescribed by its procedural rules].
34-9 (b) Prior to taking action on an application for an
34-10 interbasin transfer, at least one public meeting to receive
34-11 comments shall be held in both the basin of origin of the water
34-12 proposed for transfer and the basin receiving water from the
34-13 proposed transfer. Any person may present relevant information and
34-14 data at the meeting on the criteria which the commission is to
34-15 consider related to the interbasin transfer.
34-16 (c) In addition to the public meetings required by
34-17 Subsection (b) of this section, the commission shall hold an
34-18 evidentiary hearing, in accordance with commission rules and
34-19 applicable state law, if the application is contested and an
34-20 evidentiary hearing is required. The commission shall give notice
34-21 and hold the evidentiary hearing in the manner prescribed by its
34-22 procedural rules.
34-23 (d) Notice of an application for an interbasin transfer
34-24 shall be mailed to the following:
34-25 (1) all water right holders in the basin of origin;
34-26 (2) each county judge of a county located in whole or
34-27 in part in the basin of origin; and
34-28 (3) each mayor of a city with a population of 1,000 or
34-29 more located in whole or in part in the basin of origin.
35-1 (e) The applicant shall cause the notice of application for
35-2 an interbasin transfer to be published once a week for two
35-3 consecutive weeks in one or more newspapers having general
35-4 circulation in each county located in whole or in part in the basin
35-5 of origin. The published notice may not be smaller than 96.8
35-6 square centimeters or 15 square inches with the shortest dimension
35-7 at least 7.6 centimeters or three inches. The notice of
35-8 application and public meetings shall be combined in the mailed and
35-9 published notices.
35-10 (f) The applicant shall pay the cost of notice required to
35-11 be provided under this section. The commission by rule may
35-12 establish procedures for payment of those costs.
35-13 (g) In addition to other requirements of this code relating
35-14 to the review of and action on an application for a new or amended
35-15 water right, the commission shall weigh the effects of the proposed
35-16 transfer on the basin of origin and the receiving basin by
35-17 considering:
35-18 (1) the need for the water in the basin of origin and
35-19 in the proposed receiving basin based on the period for which the
35-20 water supply is requested, but not more than 50 years, and
35-21 identified in a needs assessment or a regional water management
35-22 plan which addresses the following for each basin:
35-23 (A) the availability of feasible and practicable
35-24 alternative supplies to the water proposed for transfer and their
35-25 related economic and environmental impacts as compared to the
35-26 potential economic and environmental impacts of the transfer;
35-27 (B) the amount and purposes of use for which
35-28 water is needed;
35-29 (C) evidence that reasonable diligence is and
36-1 will be used to avoid waste, achieve water conservation, and
36-2 implement drought contingency measures;
36-3 (D) evidence of reasonable diligence to put the
36-4 water proposed for transfer to beneficial use; and
36-5 (E) the projected economic impact that is
36-6 reasonably expected to occur if the water proposed for transfer is
36-7 used in each basin;
36-8 (2) the intended use by both basins of the water
36-9 proposed for transfer against the preferences for use set forth in
36-10 Section 11.024 of this code;
36-11 (3) the actual impacts of the proposed transfer on
36-12 existing instream uses, water quality, aquatic and riparian
36-13 habitat, and bays and estuaries that must be assessed under
36-14 Sections 11.147, 11.150, and 11.152 of this code in the basin of
36-15 origin and the receiving basin, and if the water sought to be
36-16 transferred is currently authorized to be used under an existing
36-17 water right, such impacts shall only be considered in relation to
36-18 that portion of the water right proposed for transfer and shall be
36-19 based on historical uses of the water right for which amendment is
36-20 sought;
36-21 (4) proposed mitigation or compensation, if any, to
36-22 the basin of origin by the applicant;
36-23 (5) the applicant's or intended water user's diligence
36-24 in pursuing feasible and practicable alternative water supplies
36-25 within the receiving basin and the sufficiency of the applicant's
36-26 or intended water user's water conservation efforts; and
36-27 (6) for an amendment to an existing water right, the
36-28 continued need to use the water for the original purposes that were
36-29 identified as requiring such water under the application for the
37-1 original water right.
37-2 (h) The commission may grant, in whole or in part, an
37-3 application for an interbasin transfer only to the extent that the
37-4 detriments to the basin of origin during the proposed transfer
37-5 period are less than the benefits to the receiving basin during the
37-6 proposed transfer period. The commission may grant new or amended
37-7 water rights under this section with or without specific terms or
37-8 periods of use and with specific conditions under which a transfer
37-9 of water may occur.
37-10 (i) This section does not apply to:
37-11 (1) a proposed transfer or cumulative transfers of
37-12 less than 5,000 acre-feet of water per annum from the same water
37-13 right; or
37-14 (2) a request for an emergency transfer of water; or
37-15 (3) a proposed transfer from a basin to its adjoining
37-16 coastal basin.
37-17 (j) If the transfer of water is based on a contractual sale
37-18 of water, the new or amended water right authorizing the transfer
37-19 shall contain a condition for a term or period not greater than the
37-20 contract term.
37-21 (k) The parties to a contract for an interbasin transfer may
37-22 include provisions for compensation and mitigation.
37-23 (l) For the purposes of this section, a basin is delineated
37-24 as provided in the state water plan in accordance with Section
37-25 16.051 of this code.
37-26 (m) [(c)] A person who takes or diverts water in violation
37-27 of this section is guilty of a misdemeanor and upon conviction is
37-28 punishable by a fine of not [less than $100 nor] more than $10,000
37-29 [$500] or by confinement in the county jail for not more than six
38-1 months.
38-2 (n) [(d)] A person commits a separate offense each day he
38-3 continues to take or divert water in violation of this section.
38-4 SECTION 2.09. Subsection (a), Section 11.124, Water Code, is
38-5 amended to read as follows:
38-6 (a) An application to appropriate unappropriated state water
38-7 must:
38-8 (1) be in writing and sworn to;
38-9 (2) contain the name and post-office address of the
38-10 applicant;
38-11 (3) identify the source of water supply;
38-12 (4) state the nature and purposes of the proposed use
38-13 or uses and the amount of water to be used for each purpose;
38-14 (5) state the location and describe the proposed
38-15 facilities;
38-16 (6) state the time within which the proposed
38-17 construction is to begin; and
38-18 (7) state the time required for the application of
38-19 water to the proposed use or uses.
38-20 SECTION 2.10. Subsection (b), Section 11.135, Water Code, is
38-21 amended to read as follows:
38-22 (b) The permit shall be in writing and attested by the seal
38-23 of the commission, and it shall contain substantially the following
38-24 information:
38-25 (1) the name of the person to whom the permit is
38-26 issued;
38-27 (2) the date the permit is issued;
38-28 (3) the date the original application was filed;
38-29 (4) the use or purpose for which the appropriation is
39-1 to be made;
39-2 (5) the amount or volume of water authorized to be
39-3 appropriated for each purpose; if use of the appropriated water is
39-4 authorized for multiple purposes, the permit shall contain a
39-5 special condition limiting the total amount of water that may
39-6 actually be diverted for all of the purposes to the amount of water
39-7 appropriated;
39-8 (6) a general description of the source of supply from
39-9 which the appropriation is proposed to be made;
39-10 (7) the time within which construction or work must
39-11 begin and the time within which it must be completed; and
39-12 (8) any other information the commission prescribes.
39-13 SECTION 2.11. Sections 11.176 and 11.177, Water Code, are
39-14 amended to read as follows:
39-15 Sec. 11.176. HEARING. (a) Except as provided by Subsection
39-16 (b) of this section, the [The] commission shall hold a hearing and
39-17 shall give the holder of the permit, certified filing, or
39-18 certificate of adjudication and other interested persons an
39-19 opportunity to be heard and to present evidence on any matter
39-20 pertinent to the questions at issue.
39-21 (b) A hearing on the cancellation of a water right as
39-22 provided by this chapter is unnecessary if the right to such
39-23 hearing is expressly waived by the affected water right holder.
39-24 (c) A water right for a term does not vest in the water
39-25 right holder any right to the diversion, impoundment, or use of
39-26 water for longer than the term of the water right and shall expire
39-27 and be cancelled in accordance with its terms without further need
39-28 for notice or hearing.
39-29 Sec. 11.177. COMMISSION FINDING; ACTION. (a) At the
40-1 conclusion of the hearing, the commission shall cancel the permit,
40-2 certified filing, or certificate of adjudication in whole or in
40-3 part to the extent that it finds that:
40-4 (1) the water or any portion of the water appropriated
40-5 under the permit, certified filing, or certificate of adjudication
40-6 has not been put to an authorized beneficial use during the 10-year
40-7 period; and
40-8 (2) the holder has not used reasonable diligence in
40-9 applying the water or the unused portion of the water to an
40-10 authorized beneficial use or is otherwise unjustified in the
40-11 nonuse[; and]
40-12 [(3) the holder has not been justified in the nonuse
40-13 or does not then have a bona fide intention of putting the water or
40-14 the unused portion of the water to an authorized beneficial use
40-15 within a reasonable time after the hearing].
40-16 (b) In determining what constitutes reasonable diligence or
40-17 a justified nonuse [and a reasonable time] as used in Subsection
40-18 (a)(2) [(a)(3)] of this section, the commission shall give
40-19 consideration to:
40-20 (1) whether sufficient water is available in the
40-21 source of supply to meet all or part of the appropriation during
40-22 the 10-year period of nonuse;
40-23 (2) whether the nonuse is justified by the holder's
40-24 participation in the federal Conservation Reserve Program or a
40-25 similar governmental program as provided by Section 11.173(b)(1) of
40-26 this code;
40-27 (3) whether the water right was obtained to meet
40-28 demonstrated long-term public water supply needs as evidenced by a
40-29 water management plan developed by the holder or consistent with
41-1 projections of future water needs contained in the state water
41-2 plan;
41-3 (4) whether the holder has complied with an approved
41-4 water management plan as provided by Section 11.173(b)(2) of this
41-5 code; or
41-6 (5) whether the water right has been deposited into
41-7 the Texas Water Bank as provided by Section 15.704 of this code
41-8 [the expenditures made or obligations incurred by the holder in
41-9 connection with the permit, certified filing, or certificate of
41-10 adjudication;]
41-11 [(2) the purpose to which the water is to be applied;]
41-12 [(3) the priority of the purpose;]
41-13 [(4) the amount of time usually necessary to put water
41-14 to a beneficial use for the same purpose when diligently developed;
41-15 and]
41-16 [(5) whether at all times during the 10-year period
41-17 there was rainfall adequate to enable the use of all or part of the
41-18 water authorized to be appropriated under the permit, certified
41-19 filing, or certificate of adjudication].
41-20 SECTION 2.12. Subsection (a), Section 15.704, Water Code, is
41-21 amended to read as follows:
41-22 (a) A [Up to 50 percent of a] water right may be deposited
41-23 in the water bank for an initial term of up to 10 years, during
41-24 which time the water right is exempt from cancellation by the
41-25 commission under the terms of Subchapter E of Chapter 11 of this
41-26 code. A water right is exempt from cancellation under this
41-27 subsection only once even if it has been transferred or
41-28 redeposited.
41-29 SECTION 2.13. All permits approved by the Texas Natural
42-1 Resource Conservation Commission before the effective date of this
42-2 Act that allow the multiple use of the appropriation of a specific
42-3 amount of water and which are no longer subject to appeal are
42-4 validated in all respects as if they originally had been legally
42-5 authorized or accomplished.
42-6 ARTICLE 3. SURFACE WATER AND GROUNDWATER SUPPLIES
42-7 SECTION 3.01. Subsection (b), Section 11.134, Water Code, is
42-8 amended to read as follows:
42-9 (b) The commission shall grant the application only if:
42-10 (1) the application conforms to the requirements
42-11 prescribed by this chapter and is accompanied by the prescribed
42-12 fee;
42-13 (2) unappropriated water is available in the source of
42-14 supply;
42-15 (3) the proposed appropriation:
42-16 (A) contemplates the application of water to any
42-17 beneficial use;
42-18 (B) does not impair existing water rights or
42-19 vested riparian rights; [and]
42-20 (C) is not detrimental to the public welfare;
42-21 and
42-22 (D) addresses a water supply need in a manner
42-23 that is consistent with the state water plan or an approved
42-24 regional water management plan for the area in which the proposed
42-25 appropriation is located, unless the commission determines that
42-26 conditions warrant waiver of this requirement; and
42-27 (4) the applicant has provided evidence that
42-28 reasonable diligence will be used to avoid waste and achieve water
42-29 conservation as defined by Subdivision (8)(B), Section 11.002, of
43-1 this code.
43-2 SECTION 3.02. Subchapter D, Chapter 11, Water Code, is
43-3 amended by adding Section 11.151 to read as follows:
43-4 Sec. 11.151. EFFECTS OF PERMITS ON GROUNDWATER. In
43-5 considering an application for a permit to store, take, or divert
43-6 surface water, the commission may assess the effects, if any, on
43-7 groundwater.
43-8 SECTION 3.03. Section 11.153, Water Code, is amended by
43-9 amending the section heading and Subsection (d) to read as follows:
43-10 Sec. 11.153. [PILOT] PROJECTS FOR STORAGE OF APPROPRIATED
43-11 WATER IN AQUIFERS.
43-12 (d) The commission shall only issue a [A] final order
43-13 granting a permit or amendment to a permit authorizing the storage
43-14 of appropriated water in aquifers for subsequent beneficial use
43-15 where completed pilot projects or historically demonstrated
43-16 projects have been shown to be feasible under the criteria provided
43-17 in Section 11.154(c) and (d)[, other than for the pilot projects
43-18 authorized by this section, may not be issued before June 1, 1999].
43-19 SECTION 3.04. Subsections (a), (b), (c), and (e), Section
43-20 11.154, Water Code, are amended to read as follows:
43-21 (a) An application filed with the commission to undertake a
43-22 [pilot] project under Section 11.153 must include:
43-23 (1) the information required for an application for a
43-24 permit or permit amendment to appropriate state water;
43-25 (2) all information required for an application for a
43-26 permit for a Class V injection well without requiring a separate
43-27 hearing or notice; and
43-28 (3) a map or plat showing the injection facility and
43-29 the aquifer in which the water will be stored.
44-1 (b) If the application is for a permit or permit amendment
44-2 to store appropriated water in a groundwater [an underground water]
44-3 reservoir or a subdivision of a groundwater [an underground water]
44-4 reservoir, as defined by Chapter 36 [52], that is under the
44-5 jurisdiction of a groundwater [an underground water] conservation
44-6 district:
44-7 (1) the applicant shall:
44-8 (A) provide a copy of the application to each
44-9 groundwater [underground water] conservation district that has
44-10 jurisdiction over the reservoir or subdivision;
44-11 (B) cooperate with each district [the districts]
44-12 that has [have] jurisdiction over the reservoir or subdivision to
44-13 ensure compliance with the rules of each district;
44-14 (C) cooperate with each district that has
44-15 jurisdiction over the reservoir or subdivision to develop rules
44-16 regarding the injection, storage, and withdrawal of appropriated
44-17 water stored in the aquifer; and
44-18 (D) comply with the rules governing the
44-19 injection, storage, and [or] withdrawal of appropriated water
44-20 stored in the reservoir or subdivision that are adopted by each [a]
44-21 district that has jurisdiction over the reservoir or subdivision;
44-22 and
44-23 (2) the commission shall require that any agreement
44-24 the applicant reaches with a district that has jurisdiction over
44-25 the reservoir or subdivision regarding the terms for the injection,
44-26 storage, and withdrawal of appropriated water be included as a
44-27 condition of the permit or permit amendment.
44-28 (c) On [completion of a pilot project and] receipt of an
44-29 appropriate application for a permit or an amendment to an existing
45-1 permit from an applicant with a completed pilot or historically
45-2 demonstrated project, the commission shall evaluate the success of
45-3 the pilot or historically demonstrated project for purposes of
45-4 issuing a final order granting a permit or permit amendment
45-5 authorizing the storage of appropriated water incident to a
45-6 beneficial use. The commission shall consider whether:
45-7 (1) the introduction of water into the aquifer will
45-8 alter the physical, chemical, or biological quality of native
45-9 groundwater to a degree that the introduction would:
45-10 (A) render groundwater produced from the aquifer
45-11 harmful or detrimental to people, animals, vegetation, or property;
45-12 or
45-13 (B) require treatment of the groundwater to a
45-14 greater extent than the native groundwater requires before being
45-15 applied to that beneficial use;
45-16 (2) the water stored in the receiving aquifer can be
45-17 successfully harvested from the aquifer for beneficial use; and
45-18 (3) the permit holder has provided evidence that
45-19 reasonable diligence will be used to protect the water stored in
45-20 the receiving aquifer from unauthorized withdrawals to the extent
45-21 necessary to maximize the permit holder's ability to retrieve and
45-22 beneficially use the stored water without experiencing unreasonable
45-23 loss of appropriated water.
45-24 (e) A permit to store appropriated water in a groundwater
45-25 [an underground water] reservoir or subdivision, as defined by
45-26 Chapter 36 [52], shall provide as a condition to the permit that
45-27 the permit holder shall:
45-28 (1) register the permit holder's injection and
45-29 recovery wells with a groundwater [an underground water]
46-1 conservation district that has jurisdiction over the reservoir or
46-2 subdivision, if any; and
46-3 (2) each calendar month, provide the district, if any,
46-4 with a written report showing for the previous calendar month:
46-5 (A) the amount of water injected for storage;
46-6 and
46-7 (B) the amount of water recaptured for use.
46-8 SECTION 3.05. Subsection (b), Section 11.155, Water Code, is
46-9 amended to read as follows:
46-10 (b) The board shall make other studies, investigations, and
46-11 surveys of the aquifers in the state as it considers necessary to
46-12 determine the occurrence, quantity, quality, and availability of
46-13 other aquifers in which water may be stored and subsequently
46-14 retrieved for beneficial use. The board shall undertake the
46-15 studies, investigations, and surveys in the following order of
46-16 priority:
46-17 (1) the aquifers identified in Section 11.153(a);
46-18 (2) areas designated by the commission as "priority
46-19 groundwater management [critical] areas" under Section 35.008
46-20 [52.053]; and
46-21 (3) other areas of the state in a priority to be
46-22 determined by the board's ranking of where the greatest need
46-23 exists.
46-24 SECTION 3.06. Subsection (b), Section 11.173, Water Code, is
46-25 amended to read as follows:
46-26 (b) A permit, certified filing, or certificate of
46-27 adjudication or a portion of a permit, certified filing, or
46-28 certificate of adjudication is exempt from cancellation under
46-29 Subsection (a) of this section:
47-1 (1) to the extent of the owner's participation in the
47-2 Conservation Reserve Program authorized by the Food Security Act,
47-3 Pub.L. No. 99-198, Secs. 1231-1236, 99 Stat. 1354, 1509-1514 (1985)
47-4 or a similar governmental program; or
47-5 (2) if any portion of the water authorized to be used
47-6 pursuant to a permit, certified filing, or certificate of
47-7 adjudication has been used in accordance with a water management
47-8 plan approved by the commission or a regional water management plan
47-9 approved pursuant to Section 16.059 of this code.
47-10 SECTION 3.07. Subdivision (6), Section 15.001, Water Code,
47-11 is amended to read as follows:
47-12 (6) "Project" means:
47-13 (A) any undertaking or work to conserve, convey,
47-14 and develop surface or subsurface water resources in the state, to
47-15 provide for the maintenance and enhancement of the quality of the
47-16 water of the state, to provide nonstructural and structural flood
47-17 control, drainage, subsidence control, recharge, chloride control,
47-18 and desalinization, and to carry out other purposes defined by
47-19 board rules; [or]
47-20 (B) any undertaking or work outside the state to
47-21 provide for the maintenance and enhancement of the quality of water
47-22 by eliminating saline inflow through well pumping and deep well
47-23 injection of brine; or
47-24 (C) any undertaking or work by Texas political
47-25 subdivisions to conserve, convey, and develop surface or subsurface
47-26 water resources in areas outside Texas or to provide for the
47-27 maintenance and enhancement of the quality of the water in areas
47-28 adjoining Texas, if such undertaking or work will result in water
47-29 being available for use in or for the benefit of Texas or will
48-1 maintain and enhance the quality of water in Texas.
48-2 SECTION 3.08. Subsection (b), Section 15.002, Water Code, is
48-3 amended to read as follows:
48-4 (b) The legislature finds that the conventional means of
48-5 financing projects are inadequate to meet current and anticipated
48-6 needs of the state. Therefore, it is the further intent of the
48-7 legislature to provide a means of coordinating the development of
48-8 projects [throughout the state] through the board and to provide
48-9 political subdivisions the maximum opportunity to finance projects
48-10 through programs provided by this chapter. Projects may be in the
48-11 state or outside the state, provided that out-of-state projects
48-12 must be funded through a Texas political subdivision and must
48-13 result in water being available for use in or for the benefit of
48-14 Texas or maintain and enhance the quality of water in Texas.
48-15 SECTION 3.09. Section 15.401, Water Code, is amended to read
48-16 as follows:
48-17 Sec. 15.401. PROGRAM CREATION. The research and planning
48-18 program is created to provide money for research into and planning
48-19 of the proper conservation and development of the state's water
48-20 resources, for regional planning by political subdivisions, for
48-21 facility engineering in economically distressed areas, and for
48-22 flood control planning by political subdivisions. The program may
48-23 also provide money for research and planning by Texas political
48-24 subdivisions related to the proper conservation and development of
48-25 water resources of areas outside Texas if such research or planning
48-26 will result in water being available for use in or for the benefit
48-27 of Texas or will maintain and enhance the quality of water in
48-28 Texas.
48-29 SECTION 3.10. Subsection (a), Section 15.404, Water Code, is
49-1 amended to read as follows:
49-2 (a) The board may enter into a contract with any person for
49-3 research into any matter relating to the conservation and
49-4 development of the state's water resources or for research by Texas
49-5 political subdivisions related to the proper conservation and
49-6 development of water resources of areas outside Texas if such
49-7 research will result in water being available for use in or for the
49-8 benefit of Texas or will help maintain and enhance the quality of
49-9 water in Texas.
49-10 SECTION 3.11. Subsection (f), Section 15.406, Water Code, is
49-11 amended to read as follows:
49-12 (f) The board shall adopt rules establishing criteria of
49-13 eligibility for regional facility planning money that considers:
49-14 (1) the relative need of the political subdivision for
49-15 the money;
49-16 (2) the legal authority of the political subdivision
49-17 to plan, develop, and operate regional facilities; [and]
49-18 (3) the effect of regional facility planning by the
49-19 political subdivision on overall regional facility planning,
49-20 development, and operation in the state and within the area in
49-21 which the political subdivision is located; and
49-22 (4) the degree to which the regional facility planning
49-23 by the political subdivision is consistent with an approved
49-24 regional water management plan for the area in which the political
49-25 subdivision is located.
49-26 SECTION 3.12. Subchapter F, Chapter 15, Water Code, is
49-27 amended by adding a new Section 15.407 and renumbering existing
49-28 Section 15.407 as Section 15.408 to read as follows:
49-29 Sec. 15.407. REGIONAL WATER MANAGEMENT PLANNING. (a) The
50-1 board may enter into contracts with political subdivisions to pay
50-2 from the research and planning fund all or part of the cost of
50-3 developing or revising comprehensive regional water management
50-4 plans as defined in Section 16.059 of this code.
50-5 (b) A political subdivision or political subdivisions that
50-6 desire money from the research and planning fund for regional water
50-7 management planning shall submit a written application to the board
50-8 in the manner and form required by board rules.
50-9 (c) The application shall include:
50-10 (1) the name of the political subdivision or political
50-11 subdivisions;
50-12 (2) a citation to the laws under which the political
50-13 subdivision was created and is operating, including specific
50-14 citation of all laws providing authority to develop and implement a
50-15 regional water management plan;
50-16 (3) the amount requested from the board for regional
50-17 water management planning; and
50-18 (4) any other relevant information required by the
50-19 board in its rules or specifically requested by the board.
50-20 (d) After notice and hearing, the board may award the
50-21 applicant all or part of the requested funds that the board
50-22 considers necessary for the political subdivision to carry out
50-23 regional water management planning.
50-24 (e) If the board grants an application under this section
50-25 and awards funds for regional water management planning, the board
50-26 shall enter into a contract with the political subdivision or
50-27 political subdivisions that includes:
50-28 (1) a detailed statement of the purpose for which the
50-29 money is to be used;
51-1 (2) the total amount of money to be paid by the board
51-2 from the research and planning fund under the contract; and
51-3 (3) any other terms and conditions required by the
51-4 board's rules or agreed to by the contracting parties.
51-5 (f) The board shall adopt rules establishing criteria for
51-6 eligibility for regional water management planning money that
51-7 include:
51-8 (1) the relative need of the political subdivision for
51-9 the money;
51-10 (2) the legal authority of the political subdivision
51-11 to develop and implement a regional water management plan; and
51-12 (3) the degree to which regional water management
51-13 planning by the political subdivision or political subdivisions
51-14 will address the water supply needs of all communities and public
51-15 water systems in the designated planning area.
51-16 (g) The board shall require that regional water management
51-17 plans developed or revised under contracts entered into under this
51-18 section be made available to the commission.
51-19 Sec. 15.408. FACILITY ENGINEERING IN ECONOMICALLY DISTRESSED
51-20 AREAS. (a) In this section, "economically distressed area" and
51-21 "political subdivision" have the meanings assigned by Section
51-22 16.341 of this code.
51-23 (b) The board may enter into contracts with a political
51-24 subdivision to pay from the research and planning fund all or part
51-25 of the cost of facility engineering in economically distressed
51-26 areas, including preparation of plans and specifications.
51-27 (c) A political subdivision that desires money from the
51-28 research and planning fund for facility engineering in an
51-29 economically distressed area shall submit a written application to
52-1 the board in the manner and form required by board rules.
52-2 (d) The application shall include:
52-3 (1) the name of the political subdivision;
52-4 (2) a citation to the laws under which the political
52-5 subdivision was created and is operating;
52-6 (3) the amount requested from the board for facility
52-7 engineering in an economically distressed area; and
52-8 (4) any other information required by the board in its
52-9 rules or specifically requested by the board.
52-10 (e) After notice and hearing, the board may award the
52-11 applicant all or part of the requested funds that are considered
52-12 necessary by the board for the political subdivision to carry out
52-13 adequate facility engineering in an economically distressed area.
52-14 (f) If the board grants an application under this section
52-15 and awards funds for facility engineering in an economically
52-16 distressed area, the board shall enter into a contract with the
52-17 political subdivision that includes:
52-18 (1) a detailed statement of the purpose for which the
52-19 money is to be used;
52-20 (2) the total amount of money to be paid from the
52-21 research and planning fund under the contract; and
52-22 (3) any other terms and conditions required by board
52-23 rules or agreed to by the contracting parties.
52-24 (g) If, after submission of an application under this
52-25 section, a county has an increase in average per capita income or a
52-26 decrease in unemployment rate average so that the county no longer
52-27 meets the definition of an affected county in Section 16.341, the
52-28 political subdivision that submits the application continues to be
52-29 eligible for the funds under this section, and the board shall
53-1 process the application for facility engineering and, if the
53-2 application is approved, shall provide funds for the facility
53-3 engineering plan to the political subdivision.
53-4 SECTION 3.13. Subchapter C, Chapter 16, Water Code, is
53-5 amended by adding Section 16.059 to read as follows:
53-6 Sec. 16.059. REGIONAL WATER MANAGEMENT PLANS. (a) The
53-7 executive administrator shall encourage the development and
53-8 periodic revision, as necessary, of regional water management plans
53-9 and may provide technical assistance with the development or
53-10 revision of such plans.
53-11 (b) Regional water management plans shall be prepared by
53-12 political subdivisions under this section to assure an adequate,
53-13 reliable, and affordable long-term water supply for all of the
53-14 communities and public water supply systems within a designated
53-15 regional water management planning area. Regional water management
53-16 plans shall be developed and revised with the substantive
53-17 participation of all communities, public water systems, and water
53-18 suppliers within a designated regional planning area and shall
53-19 include but are not limited to:
53-20 (1) consideration and inclusion, as appropriate, of
53-21 all potentially feasible water management strategies including, but
53-22 not limited to, improved management of existing water supplies,
53-23 improved water use efficiency, water reuse and recycling, water
53-24 supply and water demand management during water shortage,
53-25 conjunctive use of surface water and groundwater supplies,
53-26 acquisition of available existing water supplies, and development
53-27 of new water supplies;
53-28 (2) consideration and inclusion, as appropriate, of
53-29 water management strategy provisions contained in regional or local
54-1 drought response plans;
54-2 (3) consideration of opportunities for and the
54-3 benefits of developing regional water supply facilities or
54-4 providing regional management of water supply facilities; and
54-5 (4) consideration of and appropriate provision for
54-6 environmental water needs, including adequate water to maintain
54-7 instream uses and freshwater inflows to the state's bays and
54-8 estuaries.
54-9 (c) The board shall, in coordination with the Parks and
54-10 Wildlife Department and the commission, develop guidance consistent
54-11 with the state water plan for the development and revision of
54-12 regional water management plans.
54-13 (d) The executive administrator shall designate the areas
54-14 for which regional water management plans shall be developed,
54-15 taking into consideration such factors as river basin and aquifer
54-16 delineations, water utility development patterns, socioeconomic
54-17 characteristics, and other factors the executive administrator
54-18 deems relevant. The executive administrator may also designate a
54-19 political subdivision or group of political subdivisions within
54-20 each designated regional water management planning area to serve as
54-21 the coordinating body for planning. The board shall adopt rules to
54-22 provide for the procedures for approval of regional water
54-23 management plans and to govern the procedures to be followed by the
54-24 executive administrator in carrying out the responsibilities of
54-25 this subsection.
54-26 (e) In preparing, developing, and formulating the state
54-27 water plan, the executive administrator shall give consideration to
54-28 and incorporate, as appropriate, regional water management plans
54-29 approved by the board.
55-1 (f) The board may provide financial assistance to political
55-2 subdivisions under Subchapters E and F of this chapter and
55-3 Subchapters C, D, E, F, and J, Chapter 15, and Subchapters D, I, K,
55-4 and L, Chapter 17 of this code for water projects only if the board
55-5 determines that the needs to be addressed by the project will be
55-6 addressed in a manner consistent with an approved regional water
55-7 management plan for the area in which the facility is to be
55-8 located, unless the board determines that conditions warrant waiver
55-9 of this requirement.
55-10 SECTION 3.14. Subdivision (3), Section 16.341, Water Code,
55-11 is amended to read as follows:
55-12 (3) "Political subdivision" means an affected county,
55-13 a municipality located in an affected county, a district or
55-14 authority created under Article III, Section 52, or Article XVI,
55-15 Section 59, of the Texas Constitution, located in an affected
55-16 county, or a nonprofit water supply corporation created and
55-17 operating under Chapter 76, Acts of the 43rd Legislature, 1st
55-18 Called Session, 1933 (Article 1434a, Vernon's Texas Civil
55-19 Statutes), located in an affected county, that receives funds for
55-20 facility engineering under Section 15.408 [15.407] of this code or
55-21 financial assistance under Subchapter K, Chapter 17, of this code
55-22 or an economically distressed area in an affected county for which
55-23 financial assistance is received under Subchapter C, Chapter 15, of
55-24 this code.
55-25 SECTION 3.15. Subsection (g), Section 16.343, Water Code, is
55-26 amended to read as follows:
55-27 (g) Before filing an application for funds for facility
55-28 engineering under Section 15.408 [15.407] of this code or financial
55-29 assistance under Subchapter K, Chapter 17, of this code, a
56-1 political subdivision must adopt the model rules pursuant to this
56-2 section or, in the case of a district or nonprofit water supply
56-3 corporation, must be located in a city or county that has adopted
56-4 such rules. An affected county may not receive funds under either
56-5 Section 15.408 [15.407] of this code or Subchapter K, Chapter 17,
56-6 of this code unless the county adopts and enforces the model rules.
56-7 SECTION 3.16. Subsection (a), Section 16.345, Water Code, is
56-8 amended to read as follows:
56-9 (a) A political subdivision may exercise any authority
56-10 necessary to participate in a program under Section 15.408 [15.407]
56-11 of this code or Subchapter K, Chapter 17, of this code and carry
56-12 out the terms and conditions under which the funds or the financial
56-13 assistance is provided.
56-14 SECTION 3.17. Subsections (a) and (d), Section 16.350, Water
56-15 Code, are amended to read as follows:
56-16 (a) A county or municipality that applies for or receives
56-17 funds or financial assistance under Section 15.408 [15.407] of this
56-18 code or Subchapter K, Chapter 17, of this code must adopt and
56-19 enforce the model rules developed under Section 16.343 of this code
56-20 to be eligible to participate in this program. The county or
56-21 municipality by order or ordinance shall adopt and enter the model
56-22 rules in the minutes of a meeting of its governing body and shall
56-23 publish notice of that action in a newspaper with general
56-24 circulation in the county or municipality. A municipality is
56-25 eligible to participate in this program only if the county in which
56-26 the project is located adopts and enforces the model rules.
56-27 (d) A county or municipality that receives funds or
56-28 financial assistance under Section 15.408 [15.407] of this code or
56-29 Subchapter K, Chapter 17, of this code may grant an exemption for a
57-1 subdivision from the requirements of the model rules only if the
57-2 county or municipality supplies the subdivision with water supply
57-3 and sewer services that meet the standards of the model rules.
57-4 SECTION 3.18. Section 17.895, Water Code, is amended by
57-5 adding Subsection (c) to read as follows:
57-6 (c) The board may make conservation loans to borrower
57-7 districts for the cost of purchasing and installing devices, on
57-8 public or private property, designed to indicate the amount of
57-9 water withdrawn for irrigation purposes.
57-10 SECTION 3.19. Section 17.926, Water Code, is amended to read
57-11 as follows:
57-12 Sec. 17.926. APPLICANTS' CONTINUED ELIGIBILITY. If, after
57-13 submission of a financial assistance application under this
57-14 subchapter or an application for funds under Section 15.408
57-15 [15.407], a county has an increase in average per capita income or
57-16 decrease in unemployment rate average so that the county no longer
57-17 meets the criteria in this subchapter, the political subdivision
57-18 that submits the application continues to be eligible for the
57-19 financial assistance under this subchapter, and the board shall
57-20 process the application and, if the application is approved, shall
57-21 provide financial assistance to the political subdivision to
57-22 complete the project.
57-23 SECTION 3.20. Section 27.0511, Water Code, is amended by
57-24 adding Subsection (h) to read as follows:
57-25 (h) If the railroad commission receives an application for
57-26 an injection well using fresh water for enhanced recovery purposes
57-27 and the well is to be located in a groundwater conservation
57-28 district, the railroad commission shall give notice to the district
57-29 in which the well is to be located that the application has been
58-1 received and is being considered. The railroad commission shall
58-2 determine whether the permit application is consistent with the
58-3 district's management plan.
58-4 SECTION 3.21. Subdivision (12), Section 35.002, Water Code,
58-5 is amended to read as follows:
58-6 (12) "Priority groundwater management [Critical] area"
58-7 means an area designated and delineated by the commission as an
58-8 area that is experiencing or is expected to experience critical
58-9 groundwater problems.
58-10 SECTION 3.22. Section 35.007, Water Code, is amended to read
58-11 as follows:
58-12 Sec. 35.007. IDENTIFYING, DESIGNATING, AND DELINEATING
58-13 PRIORITY GROUNDWATER MANAGEMENT [CRITICAL] AREAS. (a) The
58-14 executive director and the executive administrator shall meet at
58-15 least once a year to identify, based on information available to
58-16 the commission and the Texas Water Development Board, those areas
58-17 of the state that are experiencing or that are expected to
58-18 experience, [based on information available to the commission and
58-19 the Texas Water Development Board,] within the immediately
58-20 following 50-year [20-year] period, critical groundwater problems,
58-21 including shortages of surface water or groundwater, land
58-22 subsidence resulting from groundwater withdrawal, and contamination
58-23 of groundwater supplies.
58-24 (b) If the executive director concludes that an area of the
58-25 state should be considered for designation as a priority
58-26 groundwater management [critical] area, the executive director
58-27 shall prepare a report to the commission.
58-28 (c) The executive director shall begin preparation of a
58-29 priority groundwater management [critical] area report by
59-1 requesting a study from the executive administrator. The study
59-2 must:
59-3 (1) include an appraisal of the hydrogeology of the
59-4 area and matters within the Texas Water Development Board's
59-5 planning expertise relevant to the area;
59-6 (2) assess the area's immediate, short-term, and
59-7 long-term water supply and needs; and
59-8 (3) [. The study must] be completed and delivered to
59-9 the executive director on or before the 180th [90th] day following
59-10 the date of the request. If the study is not delivered within this
59-11 180-day [90-day] period, the executive director may proceed with
59-12 the preparation of the report.
59-13 (d) The executive director shall request a study from the
59-14 executive director of the Parks and Wildlife Department for the
59-15 purpose of preparing the report required by this section. The
59-16 study must:
59-17 (1) evaluate the potential effects of the designation
59-18 of a priority groundwater management area on an area's fish and
59-19 wildlife resources; and
59-20 (2) be completed and delivered to the executive
59-21 director on or before the 180th day following the date of the
59-22 request. If the study is not delivered within this 180-day period,
59-23 the executive director may proceed with the preparation of the
59-24 report.
59-25 (e) The report shall include:
59-26 (1) the recommended delineation of the boundaries of
59-27 any proposed priority groundwater management [critical] area in the
59-28 form of an order [a rule] to be considered for adoption by the
59-29 commission;
60-1 (2) the reasons and supporting information for or
60-2 against designating the area as a priority groundwater management
60-3 [critical] area;
60-4 (3) a recommendation regarding whether a district
60-5 should be created in the priority groundwater management [critical]
60-6 area or whether the priority groundwater management [critical] area
60-7 should be added to an existing district;
60-8 (4) a recommendation as to actions that should be
60-9 considered to conserve fish and wildlife resources; and
60-10 (5) any other information that the executive director
60-11 considers helpful to the commission.
60-12 (f) [(e)] The executive director must complete the report
60-13 and file it with the commission on or before the 240th [210th] day
60-14 following the date on which the executive administrator was
60-15 requested to produce a study. The executive director shall make
60-16 the report available for public inspection by providing a copy of
60-17 the report to at least one library in each county in which the
60-18 proposed priority groundwater management [critical] area is
60-19 located.
60-20 (g) [(f)] To carry out this section, the executive director
60-21 may make necessary studies, hold hearings, solicit and collect
60-22 information, and use information already prepared by the executive
60-23 director or the executive administrator for other purposes.
60-24 SECTION 3.23. Section 35.008, Water Code, is amended to read
60-25 as follows:
60-26 Sec. 35.008. PROCEDURES FOR DESIGNATION OF PRIORITY
60-27 GROUNDWATER MANAGEMENT AREA; CONSIDERATION OF CREATION OF DISTRICT
60-28 OR ADDITION OF LAND IN PRIORITY GROUNDWATER MANAGEMENT AREA TO
60-29 EXISTING DISTRICT [CRITICAL AREAS]. (a) The commission shall
61-1 designate priority groundwater management [critical] areas using
61-2 the procedures provided by this chapter in lieu of those provided
61-3 by [applicable to rulemaking under the Administrative Procedure
61-4 Act,] Subchapter B, Chapter 2001, Government Code[, but if
61-5 procedures required by this chapter are in conflict with that Act,
61-6 this chapter controls].
61-7 (b) The commission shall call an evidentiary hearing to
61-8 consider:
61-9 (1) the designation of a priority groundwater
61-10 management area;
61-11 (2) whether a district should be created over all or
61-12 part of a priority groundwater management area; or
61-13 (3) whether all or part of the land in the priority
61-14 groundwater management area should be added to an existing
61-15 district.
61-16 (c) Evidentiary hearings shall be held at a location in one
61-17 of the counties in which the priority groundwater management area
61-18 is located, or proposed to be located, or in the nearest convenient
61-19 location if adequate facilities are not available in those
61-20 counties.
61-21 (d) At the hearing, the commission shall hear testimony and
61-22 receive evidence from affected persons. The commission shall
61-23 consider the executive director's report and supporting information
61-24 and the testimony and evidence received at the hearing. If the
61-25 commission considers further information necessary, the commission
61-26 may request such information from any source.
61-27 (e) The designation of a priority groundwater management
61-28 [critical] area may not be appealed nor may it be challenged under
61-29 the Administrative Procedure Act, Section 2001.038, Government
62-1 Code.
62-2 SECTION 3.24. Section 35.009, Water Code, is amended to read
62-3 as follows:
62-4 Sec. 35.009. NOTICE AND HEARING. (a) The [In addition to
62-5 the notice required for rulemaking under the Administrative
62-6 Procedure Act, Section 2001.023, Government Code, the] commission
62-7 shall have notice of the hearing published in at least one
62-8 newspaper with general circulation in the county or counties in
62-9 which the area being designated a proposed priority groundwater
62-10 management [critical] area or the area within a priority
62-11 groundwater management area being considered for district creation
62-12 or for addition to an existing district is [to be] located. Notice
62-13 must be published not later than the 30th day before the date set
62-14 for the commission to consider the designation of the priority
62-15 groundwater management [critical] area, the creation of a district
62-16 in a priority groundwater management area, or the addition of land
62-17 in a priority groundwater management area to an existing district.
62-18 (b) The notice must include:
62-19 (1) if applicable, a statement of the general purpose
62-20 and effect of designating the proposed priority groundwater
62-21 management area [critical areas];
62-22 (2) if applicable, a statement of the general purpose
62-23 and effect of creating a district in the priority groundwater
62-24 management area;
62-25 (3) if applicable, a statement that all or part of the
62-26 land in the priority groundwater management area could be added to
62-27 an existing district;
62-28 (4) a map generally outlining the boundaries of the
62-29 area being considered for priority groundwater management [proposed
63-1 critical] area designation or the priority groundwater management
63-2 area being considered for district creation or for addition to an
63-3 existing district, or notice of the location at which a copy of the
63-4 map may be examined or obtained;
63-5 (5) a statement that the full executive director's
63-6 report concerning the priority groundwater management area or
63-7 proposed area is available at the commission's main office in
63-8 Austin, Texas, and at regional offices of the commission for
63-9 regions which include territory within the priority groundwater
63-10 management area or proposed priority groundwater management area
63-11 and that the report is available for inspection during regular
63-12 business hours;
63-13 (6) [(3)] a description or the name of the locations
63-14 in the affected area at which the commission has provided copies of
63-15 the executive director's report to be made available for public
63-16 inspection;
63-17 (7) the name and address of each library in the
63-18 proposed priority groundwater management area to which the
63-19 commission has provided copies of the executive director's report;
63-20 and
63-21 (8) [(4)] the date, time, and place of the hearing [at
63-22 which the commission will consider the designation of the critical
63-23 areas].
63-24 (c) The commission shall also give written notice of the
63-25 date, time, place, and purpose of the hearing to the governing body
63-26 of each county, municipality, river authority, water district, or
63-27 other entity which supplies public drinking water located either
63-28 partially or entirely in the priority groundwater management area
63-29 or proposed priority groundwater management area. The notice must
64-1 be given before the 30th day preceding the date set for the
64-2 hearing.
64-3 SECTION 3.25. Subsections (b), (c), (d), and (e), Section
64-4 35.012, Water Code, are amended to read as follows:
64-5 (b) If the commission finds that the land and other property
64-6 in the priority groundwater management [critical] area would
64-7 benefit from the creation of one or more districts, that there is a
64-8 public need for one or more districts, and that the creation of one
64-9 or more districts would further the public welfare, the commission
64-10 shall issue an order stating that the creation of one or more
64-11 districts is needed.
64-12 (c) Following [During the period between] the [date of]
64-13 issuance of a commission order under Subsection (b) [and one year
64-14 after the close of the next regular session of the legislature
64-15 following the issuance of the order], the landowners in the
64-16 priority groundwater management [critical] area may:
64-17 (1) create one or more districts under Subchapter B,
64-18 Chapter 36;
64-19 (2) have the area annexed to a district that adjoins
64-20 the area; or
64-21 (3) create one or more districts through the
64-22 legislative process.
64-23 (d) The commission shall identify the areas subject to the
64-24 order of the commission issued under Subsection (b) that have not[,
64-25 in the period provided by Subsection (c),] been incorporated into a
64-26 district[,] and shall delineate proposed boundaries of a district
64-27 to include those areas. If the commission proposes the creation of
64-28 one or more districts, the commission shall begin the procedures
64-29 for creation of a district provided in Subchapter B, Chapter 36.
65-1 (e) If the commission fails to find that the district would
65-2 be a benefit to the land and other property within the priority
65-3 groundwater management [critical] area, that there is a public need
65-4 for the district, or that creation of the district will further the
65-5 public welfare, the commission shall issue an order stating that a
65-6 district should not be created within the boundaries of the
65-7 priority groundwater management [critical] area.
65-8 SECTION 3.26. Section 35.013, Water Code, is amended to read
65-9 as follows:
65-10 Sec. 35.013. ADDING PRIORITY GROUNDWATER MANAGEMENT
65-11 [CRITICAL] AREA TO EXISTING DISTRICT. (a) If land in a priority
65-12 groundwater management [critical] area is located adjacent to one
65-13 or more existing districts, the commission, instead of issuing an
65-14 order under Section 35.012, may issue an order recommending that
65-15 the priority groundwater management [critical] area be added to the
65-16 existing district designated by the commission. In its order, the
65-17 commission must find that the land and other property in the
65-18 priority groundwater management [critical] area and the land in the
65-19 existing district will benefit from the addition of the area, that
65-20 there is a public need to add the priority groundwater management
65-21 [critical] area to the existing district, and that the addition of
65-22 the land to the existing district would further the public welfare.
65-23 (b) If the executive director recommends that the priority
65-24 groundwater management [critical] area be added to an existing
65-25 district or if the commission considers it possible to add the
65-26 priority groundwater management [critical] area to an adjacent
65-27 existing district, the commission shall give notice to the board of
65-28 the existing district recommended by the executive director or
65-29 considered by the commission to possibly serve the area and to any
66-1 other existing districts adjacent to the priority groundwater
66-2 management [critical] area.
66-3 (c) The commission shall submit a copy of the order to the
66-4 board of the district to which it is recommending the priority
66-5 groundwater management [critical] area be added. The board shall
66-6 vote on the addition of the priority groundwater management
66-7 [critical] area to the district and shall advise the commission of
66-8 the outcome.
66-9 (d) If the board votes to accept the addition of the
66-10 priority groundwater management [critical] area to the district,
66-11 the board shall call an election within the priority groundwater
66-12 management [critical] area as delineated by the commission to
66-13 determine if the priority groundwater management [critical] area
66-14 will be added to the district. In the order calling the election,
66-15 the board shall designate election precincts and polling places for
66-16 the elections.
66-17 (e) The board shall give notice of the election and the
66-18 proposition to be voted on. The board shall publish notice of the
66-19 election at least one time in one or more newspapers with general
66-20 circulation within the boundaries of the priority groundwater
66-21 management [critical] area. The notice must be published before
66-22 the 30th day preceding the date set for the election.
66-23 (f) The ballots for the election shall be printed to provide
66-24 for voting for or against the proposition: "The inclusion of
66-25 __________ (briefly describe priority groundwater management
66-26 [critical] area) in the __________ District." If the district has
66-27 issued bonds, the proposition shall include the following language:
66-28 "and assumption by the described area of a proportional share of
66-29 the outstanding indebtedness of the district."
67-1 (g) Immediately after the election, the presiding judge of
67-2 each polling place shall deliver the returns of the election to the
67-3 board, and the board shall canvass the returns for the election
67-4 within the priority groundwater management [critical] area and
67-5 declare the results. If a majority of the voters in the priority
67-6 groundwater management [critical] area voting on the proposition
67-7 vote in favor of the proposition, the board shall declare that the
67-8 priority groundwater management [critical] area is added to the
67-9 district. If a majority of the voters in the priority groundwater
67-10 management [critical] area voting on the proposition vote against
67-11 adding the priority groundwater management [critical] area to the
67-12 district, the board shall declare that the priority groundwater
67-13 management [critical] area is not added to the district. The board
67-14 shall file a copy of the election results with the commission.
67-15 (h) If the voters approve adding the priority groundwater
67-16 management [critical] area to the district, the board of the
67-17 district to which the priority groundwater management [critical]
67-18 area is added shall provide reasonable representation on that board
67-19 compatible with the district's existing scheme of representation.
67-20 (i) If the proposition is defeated, another election to add
67-21 the priority groundwater management [critical] area to an existing
67-22 district may not be called before the first anniversary of the date
67-23 on which the election on the proposition was held.
67-24 SECTION 3.27. Subsections (b) and (c), Section 35.014, Water
67-25 Code, are amended to read as follows:
67-26 (b) The costs of an election to add a priority groundwater
67-27 management [critical] area to an existing district at which the
67-28 voters approve adding the priority groundwater management
67-29 [critical] area to the district shall be paid by the existing
68-1 district.
68-2 (c) The costs of an election to create a district or add a
68-3 priority groundwater management [critical] area to an existing
68-4 district at which the proposition fails shall be paid by the
68-5 commission.
68-6 SECTION 3.28. Section 35.015, Water Code, is amended to read
68-7 as follows:
68-8 Sec. 35.015. STATE ASSISTANCE. [(a) A political
68-9 subdivision located in or that has within its boundaries an area or
68-10 part of an area delineated as a critical area, and in which the
68-11 qualified voters fail to approve the creation of a district or to
68-12 join an existing district, shall not be eligible to receive any
68-13 financial assistance from the state under Chapter 15, 16, or 17 for
68-14 use within that portion of the critical area not covered by a
68-15 district.]
68-16 [(b)] A political subdivision located in an area delineated
68-17 as a priority groundwater management [critical] area, and in which
68-18 qualified voters approve the creation of a district or annexation
68-19 into an existing district, shall be given consideration to receive
68-20 financial assistance from the state under Chapter 17 for funds to
68-21 be used in addressing issues identified in the priority groundwater
68-22 management [critical] area report in the manner provided by
68-23 Sections 17.124 and 17.125[, except that the board is not required
68-24 to make the finding set out in Section 17.125(a)(2)].
68-25 SECTION 3.29. Subsection (b), Section 35.016, Water Code, is
68-26 amended to read as follows:
68-27 (b) A district is considered active unless the commission
68-28 has determined under Section 36.302 that the district is not
68-29 operational [if it meets the requirements in Section 36.301(c)].
69-1 SECTION 3.30. Section 35.017, Water Code, is amended to read
69-2 as follows:
69-3 Sec. 35.017. STATE-OWNED LAND. If state-owned land or a
69-4 portion of state-owned land is located in a priority groundwater
69-5 management [critical] area, the state agency that has management
69-6 and control over that land under the constitution or by statute may
69-7 elect by written agreement with the commission and the district to
69-8 include the state-owned land in the district. The agreement shall
69-9 be entered into as provided by the Texas Intergovernmental
69-10 Cooperation Act, Chapter 741, Government Code, and may include
69-11 provisions for the payment by the state agency of reasonable fees
69-12 to the district. If the state does not elect to enter into the
69-13 agreement to include the state-owned land in the district, the
69-14 state agency must establish a groundwater management plan that will
69-15 conserve, protect, and prevent the waste of groundwater on that
69-16 state-owned land.
69-17 SECTION 3.31. Chapter 35, Water Code, is amended by adding
69-18 Section 35.018 to read as follows:
69-19 Sec. 35.018. REPORTS. (a) Not later than January 31 of
69-20 each odd-numbered year, the commission in conjunction with the
69-21 Texas Water Development Board shall prepare and deliver to the
69-22 governor, the lieutenant governor, and the speaker of the house of
69-23 representatives a comprehensive report concerning activities during
69-24 the preceding two years relating to the designation of priority
69-25 groundwater management areas by the commission, the creation of
69-26 districts, and the operation of districts.
69-27 (b) The report must include:
69-28 (1) the names and locations of all priority
69-29 groundwater management areas and districts created or attempted to
70-1 be created on or after November 5, 1985, the effective date of
70-2 Chapter 133 (H.B. No. 2), Acts of the 69th Legislature, Regular
70-3 Session, 1985;
70-4 (2) the authority under which each priority
70-5 groundwater management area and district was proposed for creation;
70-6 (3) a detailed analysis of each election held to
70-7 confirm the creation of a district, including analysis of election
70-8 results, possible reasons for the success or failure to confirm the
70-9 creation of a district, and the possibility for future voter
70-10 approval of districts in areas in which attempts to create
70-11 districts failed;
70-12 (4) a detailed analysis of the activities of each
70-13 district created, including those districts which are implementing
70-14 management plans approved under Section 36.1072;
70-15 (5) a report on audits performed on districts under
70-16 Section 36.302 and remedial actions taken under Section 36.303;
70-17 (6) recommendations for changes in this chapter and
70-18 Chapter 36 that will facilitate the creation of priority
70-19 groundwater management areas and the creation and operation of
70-20 districts; and
70-21 (7) any other information and recommendations that the
70-22 commission considers relevant.
70-23 SECTION 3.32. Section 36.001, Water Code, is amended by
70-24 amending Subdivision (14) and adding Subdivisions (16) and (17) to
70-25 read as follows:
70-26 (14) "Priority groundwater management [Critical] area"
70-27 means an area designated and delineated by the commission under
70-28 Chapter 35 as an area experiencing or expected to experience
70-29 critical groundwater problems.
71-1 (16) "Loan fund" means the groundwater district loan
71-2 assistance fund created under Section 36.371.
71-3 (17) "Applicant" means a newly confirmed district
71-4 applying for a loan from the loan fund.
71-5 SECTION 3.33. Subsection (c), Section 36.012, Water Code, is
71-6 amended to read as follows:
71-7 (c) The boundaries of a district must be coterminous with or
71-8 inside the boundaries of a management area or a priority
71-9 groundwater management [critical] area.
71-10 SECTION 3.34. Subsection (d), Section 36.013, Water Code, is
71-11 amended to read as follows:
71-12 (d) If a part of the proposed district is not included
71-13 within either a management area or a priority groundwater
71-14 management [critical] area, the petition to create a district may
71-15 also contain a request to create a management area. A request to
71-16 create a management area must comply with the requirements for a
71-17 petition in Section 35.005, and may be acted on by the commission
71-18 separately from the petition to create the district.
71-19 SECTION 3.35. Subchapter B, Chapter 36, Water Code, is
71-20 amended by adding Section 36.0151 to read as follows:
71-21 Sec. 36.0151. CREATION OF DISTRICT FOR PRIORITY GROUNDWATER
71-22 MANAGEMENT AREA. (a) If the commission proposes that a district
71-23 be created under Section 35.012(d), it shall in its order creating
71-24 the district provide that temporary directors be appointed under
71-25 Section 36.016 and that an election be called by the temporary
71-26 directors to confirm the creation of the district and to elect
71-27 permanent directors.
71-28 (b) The commission shall notify the county commissioners
71-29 court of each county with territory in the district of the
72-1 district's creation as soon as practicable after issuing the order
72-2 creating the district.
72-3 SECTION 3.36. Section 36.016, Water Code, is amended to read
72-4 as follows:
72-5 Sec. 36.016. APPOINTMENT OF TEMPORARY DIRECTORS. (a) If
72-6 the commission grants a petition to create a district under Section
72-7 36.015 or after the commission dissolves a district's board under
72-8 Section 36.303, it shall appoint five temporary directors.
72-9 (b) If the commission creates a district under Section
72-10 36.0151, the county commissioners court or courts of the county or
72-11 counties that contain the area of the district shall, within 90
72-12 days after receiving notification by the commission under Section
72-13 36.0151(b), appoint five temporary directors, or more if the
72-14 district contains the territory of more than five counties, for the
72-15 district's board using the method provided by Section 36.0161. A
72-16 county commissioners court shall not make any appointments after
72-17 the expiration of the 90-day period. If fewer than five temporary
72-18 directors have been appointed at the expiration of the period, the
72-19 commission shall appoint additional directors so that the board has
72-20 at least five members.
72-21 (c) Temporary directors appointed under this section [who]
72-22 shall serve until the initial directors are elected and have
72-23 qualified for office or until the voters fail to approve the
72-24 creation of the district.
72-25 (d) [(b)] If an appointee of the commission or of a county
72-26 commissioners court or county commissioners courts fails to qualify
72-27 or if a vacancy occurs in the office of temporary director, the
72-28 commission or the county commissioners court or courts, as
72-29 appropriate, shall appoint an individual to fill the vacancy.
73-1 (e) [(c)] As soon as all temporary directors have qualified,
73-2 the directors shall meet, take the oath of office, and elect a
73-3 chairman and vice chairman from among their membership. The
73-4 chairman shall preside at all meetings of the board and, in the
73-5 chairman's absence, the vice chairman shall preside.
73-6 SECTION 3.37. Subchapter B, Chapter 36, Water Code, is
73-7 amended by adding Section 36.0161 to read as follows:
73-8 Sec. 36.0161. METHOD FOR APPOINTING TEMPORARY DIRECTORS FOR
73-9 DISTRICT IN PRIORITY GROUNDWATER MANAGEMENT AREA. (a) If a
73-10 district in a priority groundwater management area is:
73-11 (1) contained within one county, the county
73-12 commissioners court of that county shall appoint five temporary
73-13 directors for the district;
73-14 (2) contained within two counties, the county
73-15 commissioners court of each county shall appoint at least one
73-16 temporary director, with the appointments of the three remaining
73-17 directors to be apportioned as provided by Subsection (b);
73-18 (3) contained within three counties, the county
73-19 commissioners court of each county shall appoint at least one
73-20 temporary director, with the appointments of the two remaining
73-21 directors to be apportioned as provided by Subsection (b);
73-22 (4) contained within four counties, the county
73-23 commissioners court of each county shall appoint at least one
73-24 temporary director, with the appointment of the remaining director
73-25 to be apportioned as provided by Subsection (b); or
73-26 (5) contained within five or more counties, the county
73-27 commissioners court of each county shall appoint one temporary
73-28 director.
73-29 (b)(1) In this subsection, "estimated groundwater use" means
74-1 the estimate of groundwater use in acre-feet developed by the
74-2 commission under Subsection (c) for the area of a county that is
74-3 within the district.
74-4 (2) The apportionment of appointments under Subsection
74-5 (a) shall be made by the commission so as to reflect, as closely as
74-6 possible, the proportion each county's estimated groundwater use
74-7 bears to the sum of the estimated groundwater use for the district
74-8 as determined under Subsection (c). The commission shall by rule
74-9 determine the method it will use to implement this subdivision.
74-10 (c) If a district is contained within two, three, or four
74-11 counties, the commission shall develop an estimate of annual
74-12 groundwater use in acre-feet for each county area within the
74-13 district.
74-14 SECTION 3.38. Section 36.102, Water Code, is amended to read
74-15 as follows:
74-16 Sec. 36.102. ENFORCEMENT OF RULES. (a) A district may
74-17 enforce this chapter and its rules by injunction, mandatory
74-18 injunction, or other appropriate remedy in a court of competent
74-19 jurisdiction.
74-20 (b) [The board may set reasonable civil penalties for breach
74-21 of any rule of the district that shall not exceed the jurisdiction
74-22 of a justice court as provided by Section 27.031, Government Code.]
74-23 [(c) A penalty under this section is in addition to any
74-24 other penalty provided by the law of this state and may be enforced
74-25 by complaints filed in the appropriate court of jurisdiction in the
74-26 county in which the district's principal office or meeting place is
74-27 located.]
74-28 [(d)] If the district prevails in any suit to enforce its
74-29 rules, it may, in the same action, recover reasonable fees for
75-1 attorneys, expert witnesses, and other costs incurred by the
75-2 district before the court. The amount of the attorney's fees shall
75-3 be fixed by the court.
75-4 (c) The district may issue orders in accordance with Chapter
75-5 2001, Government Code, to enforce the terms and conditions of
75-6 permits, orders, or rules issued or adopted under this chapter.
75-7 SECTION 3.39. Subchapter D, Chapter 36, Water Code, is
75-8 amended by adding Section 36.1021 to read as follows:
75-9 Sec. 36.1021. ADMINISTRATIVE PENALTY. (a) A district may
75-10 assess an administrative penalty against a person who violates this
75-11 chapter or a rule adopted or order issued under this chapter in an
75-12 amount not to exceed $10,000 a day for each violation and for each
75-13 day of a continuing violation.
75-14 (b) In determining the amount of the penalty, the district
75-15 shall consider:
75-16 (1) the nature, circumstances, extent, duration, and
75-17 gravity of the prohibited acts, with special emphasis on the
75-18 impairment of existing water rights or the hazard or potential
75-19 hazard created to the health, safety, or welfare of the public;
75-20 (2) the impact of the violation on the instream uses,
75-21 water quality, aquatic and wildlife habitat, or beneficial
75-22 freshwater inflows to bays and estuaries;
75-23 (3) with respect to the alleged violator:
75-24 (A) the history and extent of previous
75-25 violations;
75-26 (B) the degree of culpability, including whether
75-27 the violation was attributable to mechanical or electrical failures
75-28 and whether the violation could have been reasonably anticipated
75-29 and avoided;
76-1 (C) demonstrated good faith, including actions
76-2 taken by the alleged violator to rectify the cause of the violation
76-3 and to compensate affected persons;
76-4 (D) any economic benefit gained through the
76-5 violation; and
76-6 (E) the amount necessary to deter future
76-7 violations; and
76-8 (4) any other matters that justice may require.
76-9 (c) If after an examination of the facts the district
76-10 concludes that the person did commit a violation, the district may
76-11 issue a preliminary report stating the facts on which it based its
76-12 conclusion, recommending that an administrative penalty under this
76-13 section be imposed, and recommending the amount of the proposed
76-14 penalty.
76-15 (d) The district shall give written notice of the report to
76-16 the person charged with committing the violation. The notice must
76-17 include a brief summary of the facts, a statement of the amount of
76-18 the recommended penalty, and a statement of the person's right to
76-19 an informal review of the occurrence of the violation, the amount
76-20 of the penalty, or both the occurrence of the violation and the
76-21 amount of the penalty.
76-22 (e) Not later than the 10th day after the date on which the
76-23 person charged with committing the violation receives the notice,
76-24 the person may either give the district written consent to the
76-25 report, including the recommended penalty, or make a written
76-26 request for an informal review or a formal hearing by the district.
76-27 (f) If the person charged with committing the violation
76-28 consents to the penalty recommended by the district or fails timely
76-29 to request an informal review or a formal hearing, the district
77-1 shall assess the penalty. The district shall give the person
77-2 written notice of its action. The person shall pay the penalty not
77-3 later than the 30th day after the date on which the person receives
77-4 the notice.
77-5 (g) If the person charged with committing a violation
77-6 requests an informal review as provided by Subsection (e), the
77-7 district shall conduct the review. The district shall give the
77-8 person written notice of the results of the review not later than
77-9 60 days from the date of the request.
77-10 (h) Not later than the 10th day after the date on which the
77-11 person charged with committing the violation receives the notice
77-12 prescribed by Subsection (g), the person may make to the district a
77-13 written request for a formal hearing.
77-14 (i) If, after informal review, a person who has been ordered
77-15 to pay a penalty fails to request a formal hearing in a timely
77-16 manner, the district shall assess the penalty. The district shall
77-17 give the person written notice of its action. The person shall pay
77-18 the penalty not later than the 30th day after the date on which the
77-19 person receives the notice.
77-20 (j) Within 30 days after the date the district's order
77-21 becomes final as provided by Section 2001.144, Government Code, the
77-22 person shall:
77-23 (1) pay the amount of the penalty;
77-24 (2) pay the amount of the penalty and file a petition
77-25 for judicial review contesting the occurrence of the violation, the
77-26 amount of the penalty, or both the occurrence of the violation and
77-27 the amount of the penalty; or
77-28 (3) without paying the amount of the penalty, file a
77-29 petition for judicial review contesting the occurrence of the
78-1 violation, the amount of the penalty, or both the occurrence of the
78-2 violation and the amount of the penalty.
78-3 (k) Within the 30-day period, a person who acts under
78-4 Subsection (j)(3) of this section may:
78-5 (1) stay enforcement of the penalty by:
78-6 (A) paying the amount of the penalty to the
78-7 court for placement in an escrow account; or
78-8 (B) giving to the court a supersedeas bond that
78-9 is approved by the court for the amount of the penalty and that is
78-10 effective until all judicial review of the district's order is
78-11 final; or
78-12 (2) request the court to stay enforcement of the
78-13 penalty by:
78-14 (A) filing with the court a sworn affidavit of
78-15 the person stating that the person is financially unable to pay the
78-16 amount of the penalty and is financially unable to give the
78-17 supersedeas bond; and
78-18 (B) giving a copy of the affidavit to the
78-19 district by certified mail.
78-20 (l) If the district receives a copy of an affidavit under
78-21 Subsection (k)(2), it may file with the court within five days
78-22 after the date the copy is received a contest to the affidavit.
78-23 The court shall hold a hearing on the facts alleged in the
78-24 affidavit as soon as practicable and shall stay the enforcement of
78-25 the penalty on finding that the alleged facts are true. The person
78-26 who files an affidavit has the burden of proving that the person is
78-27 financially unable to pay the amount of the penalty and to give a
78-28 supersedeas bond.
78-29 (m) If the person does not pay the amount of the penalty and
79-1 the enforcement of the penalty is not stayed, the district may
79-2 refer the matter to the attorney general for collection of the
79-3 amount of the penalty.
79-4 (n) Judicial review of the order of the district:
79-5 (1) is instituted by filing a petition as provided by
79-6 Subchapter G, Chapter 2001, Government Code; and
79-7 (2) is under the substantial evidence rule.
79-8 (o) If the court sustains the occurrence of the violation,
79-9 the court may uphold or reduce the amount of the penalty and order
79-10 the person to pay the full or reduced amount of the penalty. If
79-11 the court does not sustain the occurrence of the violation, the
79-12 court shall order that no penalty is owed.
79-13 (p) When the judgment of the court becomes final, the court
79-14 shall proceed under this subsection. If the person paid the amount
79-15 of the penalty and if that amount is reduced or is not upheld by
79-16 the court, the court shall order that the appropriate amount plus
79-17 accrued interest be remitted to the person. The rate of interest
79-18 is the rate charged on loans to depository institutions by the New
79-19 York Federal Reserve Bank, and the interest shall be paid for the
79-20 period beginning on the date the penalty was paid and ending on the
79-21 date the penalty is remitted. If the person gave a supersedeas
79-22 bond and if the amount of the penalty is not upheld by the court,
79-23 the court shall order the release of the bond. If the person gave
79-24 a supersedeas bond and if the amount of the penalty is reduced, the
79-25 court shall order the release of the bond after the person pays the
79-26 reduced amount.
79-27 (q) A penalty collected under this section shall be remitted
79-28 to the district.
79-29 (r) All proceedings under this section are subject to
80-1 Chapter 2001, Government Code.
80-2 SECTION 3.40. Section 36.104, Water Code, is amended to read
80-3 as follows:
80-4 Sec. 36.104. PURCHASE, SALE, TRANSPORTATION, AND
80-5 DISTRIBUTION OF WATER. (a) A district may purchase, sell,
80-6 transport, and distribute surface water or groundwater for any
80-7 purpose.
80-8 (b) An export of groundwater may be limited if there is an
80-9 existing and foreseeable need for the water that is identified in
80-10 the district's management plan and there is no alternative within
80-11 the district.
80-12 SECTION 3.41. Subchapter D, Chapter 36, Water Code, is
80-13 amended by amending Section 36.107 and adding Sections 36.1071,
80-14 36.1072, and 36.1073 to read as follows:
80-15 Sec. 36.107. RESEARCH [AND PLANNING]. [(a)] A district may
80-16 carry out any research projects deemed necessary by the board.
80-17 Sec. 36.1071. MANAGEMENT PLAN. (a)[(b)] Following notice
80-18 and hearing, the district shall, in coordination with surface water
80-19 management entities on a regional basis, develop a comprehensive
80-20 management plan which addresses the following management goals:
80-21 (1) providing the most efficient use of groundwater;
80-22 (2) controlling and preventing waste of groundwater;
80-23 (3) controlling and preventing subsidence;
80-24 (4) addressing conjunctive surface water management
80-25 issues; and
80-26 (5) addressing fish and wildlife resource issues,
80-27 especially those associated with springs.
80-28 (b) In the management plan described under Subsection (a),
80-29 the district shall:
81-1 (1) identify the performance standards and management
81-2 objectives under which the district will operate to achieve the
81-3 management goals identified under Subsection (a);
81-4 (2) specify, in as much detail as possible, the
81-5 actions, procedures, performance, and avoidance that are or may be
81-6 necessary to effect the plan, including specifications, proposed
81-7 rules, and exemptions from permit requirements the district will
81-8 allow under Sections 36.117 and 36.121;
81-9 (3) identify the time periods and corresponding
81-10 timelines by which the district will seek to provide an amount of
81-11 water sufficient to meet the existing and future water needs within
81-12 the district from existing groundwater resources;
81-13 (4) include calculations of the following:
81-14 (A) the existing total usable amount of
81-15 groundwater in the district;
81-16 (B) the amount of groundwater being used within
81-17 the district on an annual basis;
81-18 (C) the estimated annual amount of recharge, if
81-19 any, to the groundwater resources within the district; and
81-20 (D) the projected future water supply and demand
81-21 for water within the district; and
81-22 (5) address water supply needs in a manner that is
81-23 consistent with the state water plan [for the most efficient use of
81-24 the groundwater, for controlling and preventing waste of
81-25 groundwater, and for controlling and preventing subsidence. The
81-26 plan may be reviewed annually but must be reviewed by the board at
81-27 least once every five years].
81-28 (c) [The district shall specify in the management plan, in
81-29 as much detail as possible, the acts, procedures, performance, and
82-1 avoidance that are or may be necessary to effect the plan,
82-2 including specifications and proposed rules.] The district shall
82-3 adopt rules necessary to implement the management plan.
82-4 (d) The board shall adopt amendments to the management plan
82-5 as necessary. Amendments to the management plan shall be adopted
82-6 after notice and hearing and shall otherwise comply with the
82-7 requirements of this section.
82-8 Sec. 36.1072. COMMISSION REVIEW AND APPROVAL OF MANAGEMENT
82-9 PLAN. (a) The district shall, not later than one year after the
82-10 creation of the district or, if the district required confirmation,
82-11 after the election confirming the district's creation, submit [file
82-12 a copy of] the management plan required under Section 36.1071 to
82-13 [and the rules with] the commission for review and approval.
82-14 (b) If a management plan complies with the requirements of
82-15 Section 36.1071, the commission, in consultation with the Texas
82-16 Water Development Board, shall grant approval of the plan. The
82-17 commission may determine that conditions justify waiver of the
82-18 requirements under Section 36.1071(b)(5). A management plan
82-19 developed under Section 36.1071 takes effect on approval by the
82-20 commission.
82-21 (c) The board may review the plan annually and must review
82-22 and readopt the plan with or without revisions at least once every
82-23 five years.
82-24 (d) If the commission does not approve the management plan
82-25 after notice and hearing, the commission shall provide to the
82-26 district, in writing, the reasons for its action. Not later than
82-27 the 180th day after the date a district receives notice that its
82-28 management plan has not been approved, the district may submit a
82-29 revised management plan for review and approval. The commission
83-1 shall not take enforcement action against a district under
83-2 Subchapter I until the later of the expiration of the 180-day
83-3 period or the date the commission has taken final action
83-4 disapproving a revised management plan.
83-5 Sec. 36.1073. AMENDMENT TO MANAGEMENT PLAN. Any amendment
83-6 to the management plan shall be submitted to the commission within
83-7 60 days following adoption of the amendment by the board. The
83-8 commission shall review and approve any amendment which
83-9 substantially affects the management plan in accordance with the
83-10 procedures established under Section 36.1072.
83-11 SECTION 3.42. Subsection (a), Section 36.108, Water Code, is
83-12 amended to read as follows:
83-13 (a) If two or more districts are located within the
83-14 boundaries of the same management area, each district shall prepare
83-15 a comprehensive management plan as required by Section 36.1071
83-16 [36.107] covering that district's respective territory. On
83-17 completion of the plan, each district shall forward a copy of the
83-18 new revised management plan to the other districts in the
83-19 management area.
83-20 SECTION 3.43. Section 36.113, Water Code, is amended to read
83-21 as follows:
83-22 Sec. 36.113. PERMITS FOR WELLS. (a) A district shall
83-23 require permits for the drilling, equipping, or completing of
83-24 wells[,] or for substantially altering the size of wells or well
83-25 pumps.
83-26 (b) A district shall require that an application for a
83-27 permit be in writing and sworn to.
83-28 (c) A district may require that the following be included in
83-29 the permit application:
84-1 (1) the name and mailing address of the applicant and
84-2 the owner of the land on which the well will be located;
84-3 (2) if the applicant is other than the owner of the
84-4 property, documentation establishing the applicable authority to
84-5 construct and operate a well for the proposed use;
84-6 (3) a statement of the nature and purpose of the
84-7 proposed use and the amount of water to be used for each purpose;
84-8 (4) a water conservation plan or a declaration that
84-9 the applicant will comply with the district's conservation plan;
84-10 (5) the location of each well and the estimated rate
84-11 at which water will be withdrawn; and
84-12 (6) if the proposed use is irrigation:
84-13 (A) a description of the land to be irrigated;
84-14 (B) a description of the crops for which
84-15 irrigation is proposed; and
84-16 (C) an estimate of the total land to be
84-17 irrigated on an annual basis.
84-18 (d) In granting a permit, the district shall consider
84-19 whether:
84-20 (1) the application conforms to the requirements
84-21 prescribed by this chapter and is accompanied by the prescribed
84-22 fees;
84-23 (2) the proposed use of water unreasonably affects
84-24 existing groundwater and surface water resources;
84-25 (3) the proposed use of water contemplates the
84-26 dedication of water to any beneficial use;
84-27 (4) the proposed use of water is consistent with the
84-28 district's approved water management plan; and
84-29 (5) the applicant has provided evidence that
85-1 reasonable diligence will be used to avoid waste and achieve water
85-2 conservation.
85-3 (e) Permits may be issued subject to the rules promulgated
85-4 by the district and subject to terms and provisions with reference
85-5 to the drilling, equipping, completion, or alteration of wells or
85-6 pumps that may be necessary to [conserve the groundwater,] prevent
85-7 waste and achieve water conservation, minimize as far as
85-8 practicable the drawdown of the water table or the reduction of
85-9 artesian pressure, lessen interference between wells, or control
85-10 and prevent subsidence.
85-11 (f) A district may require that changes in the withdrawal
85-12 and use of groundwater under a permit may not be made without the
85-13 prior approval of a permit amendment issued by the district.
85-14 SECTION 3.44. Subchapter D, Chapter 36, Water Code, is
85-15 amended by adding Section 36.1131 to read as follows:
85-16 Sec. 36.1131. REQUIRED ELEMENTS OF PERMIT. (a) A permit
85-17 issued by the district to the applicant under Section 36.113 shall
85-18 state the terms and provisions prescribed by the district.
85-19 (b) The permit may include:
85-20 (1) the name and address of the person to whom the
85-21 permit is issued;
85-22 (2) the location of the well;
85-23 (3) the date the permit is to expire if no well is
85-24 drilled;
85-25 (4) a statement of the purpose for which the well is
85-26 to be used;
85-27 (5) a requirement that the water withdrawn under the
85-28 permit be put to beneficial use at all times;
85-29 (6) the location of the use of the water from the
86-1 well;
86-2 (7) the conditions and restrictions, if any, placed on
86-3 the rate and amount of withdrawal;
86-4 (8) any conservation-oriented methods of drilling and
86-5 operating prescribed by the district;
86-6 (9) a drought contingency plan prescribed by the
86-7 district; and
86-8 (10) other terms and conditions as provided by Section
86-9 36.113.
86-10 SECTION 3.45. Subsections (a), (c), (d), and (e), Section
86-11 36.117, Water Code, are amended to read as follows:
86-12 (a) Unless otherwise specified in a district's management
86-13 plan, a [A] district may not require a permit for:
86-14 (1) drilling or producing from a well either drilled,
86-15 completed, or equipped so that it is incapable of producing more
86-16 than 25,000 gallons of groundwater a day;
86-17 (2) the drilling or alteration of the size of a well
86-18 or to restrict the production of a well if the water produced or to
86-19 be produced from the well is used or to be used to supply the
86-20 domestic needs of 10 or fewer households and a person who is a
86-21 member of each household is either the owner of the well, a person
86-22 related to the owner or a member of the owner's household within
86-23 the second degree by consanguinity, or an employee of the owner;
86-24 (3) the drilling or alteration of the size of a well
86-25 or to restrict the production from the well if the water produced
86-26 or to be produced from the well is used or to be used to provide
86-27 water for feeding livestock and poultry connected with farming,
86-28 ranching, or dairy enterprises;
86-29 (4) water wells to supply water for hydrocarbon
87-1 production activities, regardless of whether those wells are
87-2 producing, that are associated with any well permitted by the
87-3 Railroad Commission of Texas drilled before September 1, 1985; or
87-4 (5) jet wells used for domestic needs.
87-5 (c) Unless otherwise specified in a district's management
87-6 plan, a [The] district shall not deny the owner of a tract of land,
87-7 or his lessee, who has no well equipped to produce more than 25,000
87-8 gallons a day on the tract, either a permit to drill a well on his
87-9 land or the privilege to produce groundwater from his land, subject
87-10 to the rules of the district.
87-11 (d) Unless otherwise specified in a district's management
87-12 plan, a [A] district may not restrict the production of any well
87-13 equipped to produce 25,000 gallons or less a day.
87-14 (e) Nothing in this chapter applies to wells drilled for
87-15 oil, gas, sulphur, uranium, or brine, or for core tests, or for
87-16 injection of gas, saltwater, or other fluid, except fresh water, or
87-17 for any other purpose, under permits issued by the Railroad
87-18 Commission of Texas. Permits issued by the Railroad Commission of
87-19 Texas for an injection well using fresh water for enhanced recovery
87-20 purposes shall comply with the district's management plan. Unless
87-21 otherwise specified in a district's management plan, a [A] district
87-22 may not require a permit to drill a well to supply water for
87-23 drilling any of these wells permitted by the Railroad Commission of
87-24 Texas. Any well that ceases to be used for these purposes and is
87-25 then used as an ordinary water well is subject to the rules of the
87-26 district.
87-27 SECTION 3.46. Section 36.121, Water Code, is amended to read
87-28 as follows:
87-29 Sec. 36.121. LIMITATION ON RULEMAKING POWER OF DISTRICTS
88-1 OVER WELLS IN CERTAIN COUNTIES. Except as provided by Section
88-2 36.117, unless otherwise specified in a district's management plan,
88-3 a district that is created under this chapter on or after September
88-4 1, 1991, shall exempt from regulation under this chapter a well and
88-5 any water produced or to be produced by a well that is located in a
88-6 county that has a population of 14,000 or less if the water is to
88-7 be used solely to supply a municipality that has a population of
88-8 115,000 or less and the rights to the water produced from the well
88-9 are owned by a political subdivision that is not a municipality, or
88-10 by a municipality that has a population of 93,000 or less, and that
88-11 purchased, owned, or held rights to the water before the date on
88-12 which the district was created, regardless of the date the well is
88-13 drilled or the water is produced. The district may not prohibit
88-14 the political subdivision or municipality from transporting
88-15 produced water inside or outside the district's boundaries unless
88-16 otherwise specified in the district's management plan.
88-17 SECTION 3.47. Subchapter D, Chapter 36, Water Code, is
88-18 amended by adding Sections 36.122 and 36.123 to read as follows:
88-19 Sec. 36.122. PREFERENCE IN USE OF WATER. For new wells, a
88-20 district may by rule establish and apply a preference-of-use
88-21 listing for the district's groundwater, provided that domestic and
88-22 livestock uses and, among municipal uses, public health and safety
88-23 uses receive the highest priority.
88-24 Sec. 36.123. TECHNICAL ASSISTANCE. The commission is
88-25 authorized to provide technical assistance to districts during
88-26 their initial operational phase. Such assistance may include but
88-27 is not limited to demonstrations of how to adopt rules, how to set
88-28 up permitting programs, and how to initiate enforcement actions.
88-29 SECTION 3.48. Subchapter E, Chapter 36, Water Code, is
89-1 amended by adding Sections 36.159, 36.160, and 36.161 to read as
89-2 follows:
89-3 Sec. 36.159. MANAGEMENT PLAN FUNDS. The Texas Water
89-4 Development Board may allocate funds from the research and planning
89-5 fund created under Subchapter F, Chapter 15, to a district to
89-6 conduct initial data collections under this chapter, to develop and
89-7 implement a long-term management plan under Section 36.1071, and to
89-8 participate in regional plans that provide for the conjunctive
89-9 management of surface water and groundwater.
89-10 Sec. 36.160. FUNDS. The Texas Water Development Board, the
89-11 commission, and the Parks and Wildlife Department may allocate
89-12 funds to carry out the objectives of this chapter and Chapter 35,
89-13 which include but are not limited to:
89-14 (1) conducting initial and subsequent studies and
89-15 surveys under Sections 36.106, 36.107, and 36.109;
89-16 (2) providing appropriate education in affected areas
89-17 identified in Section 35.007 relating to the problems and issues
89-18 concerning water management that may arise;
89-19 (3) processing priority groundwater management area
89-20 evaluations under this chapter and Chapter 35;
89-21 (4) providing technical and administrative assistance
89-22 to newly created districts under this chapter and Chapter 35;
89-23 (5) covering the costs of newspaper notices required
89-24 under Sections 35.009 and 36.014 and failed elections in accordance
89-25 with Sections 35.014(c), 36.017(h), and 36.019; and
89-26 (6) providing for assistance from the Parks and
89-27 Wildlife Department to the Texas Water Development Board or a
89-28 district for the purpose of assessing fish and wildlife resource
89-29 habitat that would be affected by a springflow reduction.
90-1 Sec. 36.161. ELIGIBILITY FOR FUNDING. (a) Only those
90-2 districts in substantial compliance with the requirements of this
90-3 chapter shall be eligible for state funds authorized by Sections
90-4 36.159 and 36.160 and Subchapter L and for funds available from the
90-5 Texas Water Development Board under Chapters 15, 16, and 17.
90-6 (b) The Texas Water Development Board may, after notice and
90-7 hearing, discontinue funding described in Subsection (a) if the
90-8 district is found not to be in substantial compliance with the
90-9 provisions of this chapter.
90-10 (c) The Texas Water Development Board, when considering a
90-11 discontinuance under Subsection (b), shall give written notice of
90-12 the hearing to the district at least 20 days before the date set
90-13 for the hearing. The hearing shall be conducted in accordance with
90-14 Chapter 2001, Government Code, or the rules of the respective
90-15 agency. General notice of the hearing shall be given in accordance
90-16 with the rules of the agency.
90-17 SECTION 3.49. Subchapter G, Chapter 36, Water Code, is
90-18 amended by adding Section 36.206 to read as follows:
90-19 Sec. 36.206. DISTRICT FEES. (a) A board may annually set
90-20 user and standby fees. Such fees shall be set as necessary to
90-21 cover the maintenance and operating expenses of the district and
90-22 the principal of and interest on bonds issued by the district,
90-23 provided that funds received from the collection of penalties under
90-24 Section 36.1021 shall be taken into account.
90-25 (b) The rate of fees set for agricultural uses shall be no
90-26 more than 20 percent of the rate applied to municipal uses.
90-27 (c) A temporary board may set user fees to pay for the
90-28 creation and initial operation of a district.
90-29 SECTION 3.50. Subchapter I, Chapter 36, Water Code, is
91-1 amended to read as follows:
91-2 SUBCHAPTER I. PERFORMANCE REVIEW AND DISSOLUTION [OF DISTRICT]
91-3 Sec. 36.301. FAILURE TO SUBMIT A MANAGEMENT PLAN. If a
91-4 board fails to submit a management plan or to receive approval of
91-5 its management plan under Section 36.1072 or fails to submit or
91-6 receive approval of an amendment to the management plan under
91-7 Section 36.1073, the commission shall take appropriate action under
91-8 Section 36.303.
91-9 Sec. 36.302. DETERMINATION OF WHETHER DISTRICT IS
91-10 OPERATIONAL. (a) The commission shall make a determination of
91-11 whether a district is actively engaged in achieving the objectives
91-12 of the district's management plan based on an audit of the
91-13 district's performance under the plan. The commission shall
91-14 conduct such audits following the first anniversary of the initial
91-15 approval of the plan by the commission under Section 36.1072. The
91-16 commission by rule shall establish a schedule for the audit of
91-17 districts under this section.
91-18 (b) If the commission finds under Subsection (a) that the
91-19 district is not operational, the commission shall take appropriate
91-20 action under Section 36.303.
91-21 Sec. 36.303. ACTION BY COMMISSION. (a) After notice and
91-22 hearing, the commission may take any action the commission deems
91-23 appropriate to enforce compliance with any rule or order of the
91-24 commission or any provisions of this chapter, including:
91-25 (1) issuing an order requiring the district to take
91-26 certain actions or to refrain from taking certain actions;
91-27 (2) dissolving the board in accordance with Sections
91-28 36.305 and 36.307;
91-29 (3) removing the district's taxing authority; or
92-1 (4) dissolving the district in accordance with
92-2 Sections 36.304, 36.305, and 36.308.
92-3 (b) In addition to actions identified under Subsection (a),
92-4 the commission may recommend to the legislature actions the
92-5 commission deems necessary to accomplish comprehensive management
92-6 in the district.
92-7 Sec. 36.304 [36.301]. DISSOLUTION OF DISTRICT. (a) The
92-8 [After notice and hearing, the] commission may dissolve a district
92-9 that:
92-10 (1) is not operational, as determined under Section
92-11 36.302 [has been inactive for a period of three consecutive years];
92-12 and
92-13 (2) has no outstanding bonded indebtedness.
92-14 (b) A district composed of territory entirely within one
92-15 county may be dissolved even if the district [it] has outstanding
92-16 indebtedness that matures after the year in which the district is
92-17 dissolved, whereupon the commissioners court shall levy and collect
92-18 taxes on all taxable property in the district in an amount
92-19 sufficient to pay the principal of and interest on the indebtedness
92-20 when due. The taxes shall be levied and collected in the same
92-21 manner as county taxes.
92-22 [(c) A district is considered active if:]
92-23 [(1) the district has a board as required by
92-24 Subchapter D;]
92-25 [(2) the board holds regularly scheduled meetings and
92-26 has on file minutes of its meetings;]
92-27 [(3) the district has developed and filed with the
92-28 commission a management plan for the district;]
92-29 [(4) the district has copies of drillers' logs on
93-1 file;]
93-2 [(5) the district has on file well permits issued by
93-3 the district; and]
93-4 [(6) the district has on file annual district audits.]
93-5 Sec. 36.305 [36.302]. NOTICE OF HEARING FOR DISSOLUTION OF
93-6 BOARD OR DISTRICT. (a) The commission shall give notice of the
93-7 [dissolution] hearing for dissolution of a district or of a board
93-8 which briefly describes the reasons for the proceeding.
93-9 (b) The notice shall be published once each week for two
93-10 consecutive weeks before the day of hearing in a [some] newspaper
93-11 having general circulation in the county or counties in which the
93-12 district is located. The first publication shall be 30 days before
93-13 the day of the hearing.
93-14 (c) The commission shall give notice of the hearing by first
93-15 class mail addressed to the directors of the district according to
93-16 the last record on file with the executive director.
93-17 Sec. 36.306 [36.303]. INVESTIGATION. The executive director
93-18 shall investigate the facts and circumstances of any violations of
93-19 any rule or order of the commission or any provisions of this
93-20 chapter and shall prepare and file a written report with the
93-21 commission and district and include any actions the executive
93-22 director believes the commission should take under Section 36.303.
93-23 Sec. 36.307. ORDER OF DISSOLUTION OF BOARD. If the
93-24 commission enters an order to dissolve the board, the commission
93-25 shall notify the county commissioners court of each county which
93-26 contains territory in the district and the commission shall provide
93-27 that temporary directors be appointed under Section 36.016 to serve
93-28 until an election for a new board can be held under Section 36.017,
93-29 provided, however, that district confirmation shall not be required
94-1 for continued existence of the district and shall not be an issue
94-2 in the election [the district to be dissolved and the result of
94-3 the investigation shall be included in a written report].
94-4 [Sec. 36.304. ORDER OF DISSOLUTION. The commission may
94-5 enter an order dissolving the district at the conclusion of the
94-6 hearing if it finds that the district has performed none of the
94-7 functions for which it was created for a period of three
94-8 consecutive years before the day of the proceeding and that the
94-9 district has no outstanding bonded indebtedness.]
94-10 Sec. 36.308 [36.305]. CERTIFIED COPY OF ORDER. The
94-11 commission shall file a certified copy of the order of dissolution
94-12 of the district in the deed records of the county or counties in
94-13 which the district is located. If the district was created by a
94-14 special Act of the legislature, the commission shall file a
94-15 certified copy of the order of dissolution with the secretary of
94-16 state.
94-17 Sec. 36.309 [36.306]. APPEALS. [(a)] Appeals from any [a]
94-18 commission order [dissolving a district] shall be filed and heard
94-19 in the district court of Travis County in accordance with Chapter
94-20 2001, Government Code [any of the counties in which the land is
94-21 located].
94-22 [(b) The trial on appeal shall be de novo and the
94-23 substantial evidence rule shall not apply.]
94-24 Sec. 36.310 [36.307]. ASSETS ESCHEAT TO STATE. Upon the
94-25 dissolution of a district by the commission, all assets of the
94-26 district shall escheat to the State of Texas. The assets shall be
94-27 administered by the comptroller [state treasurer] and shall be
94-28 disposed of in the manner provided by Chapter 72, Property Code.
94-29 SECTION 3.51. Subsection (b), Section 36.325, Water Code, is
95-1 amended to read as follows:
95-2 (b) The petition must be signed by:
95-3 (1) a majority of the landowners in the territory;
95-4 (2) at least 50 landowners if the number of landowners
95-5 is more than 50; or
95-6 (3) the commissioners court of the county in which the
95-7 area is located if the area is identified as a priority groundwater
95-8 management [critical] area or includes the entire county. The
95-9 petition must describe the land by legal description or by metes
95-10 and bounds or by lot and block number if there is a recorded plat
95-11 of the area to be included in the district.
95-12 SECTION 3.52. Section 36.331, Water Code, is amended to read
95-13 as follows:
95-14 Sec. 36.331. ANNEXATION OF NONCONTIGUOUS TERRITORY. Land
95-15 not contiguous to the existing boundaries of a district may not be
95-16 added to or annexed to a district unless the land is located either
95-17 within the same management area, priority groundwater management
95-18 [critical] area, or a groundwater subdivision designated by the
95-19 commission or its predecessors.
95-20 SECTION 3.53. Chapter 36, Water Code, is amended by adding
95-21 Subchapter L to read as follows:
95-22 SUBCHAPTER L. GROUNDWATER DISTRICT LOAN ASSISTANCE FUND
95-23 Sec. 36.371. GROUNDWATER DISTRICT LOAN ASSISTANCE FUND.
95-24 (a) The groundwater district loan assistance fund is created, to
95-25 be funded by direct appropriation and by the Texas Water
95-26 Development Board, at its discretion, from the water assistance
95-27 fund.
95-28 (b) Repayments of loans shall be deposited in the water
95-29 assistance fund.
96-1 Sec. 36.372. FINANCIAL ASSISTANCE. (a) The loan fund may
96-2 be used by the Texas Water Development Board to provide loans to
96-3 newly confirmed districts to pay for their creation and initial
96-4 operations.
96-5 (b) The Texas Water Development Board shall establish rules
96-6 for the use and administration of the loan fund.
96-7 Sec. 36.373. APPLICATION FOR ASSISTANCE. (a) In an
96-8 application to the Texas Water Development Board for financial
96-9 assistance from the loan fund, the applicant shall include:
96-10 (1) the name of the district and its board members;
96-11 (2) a citation of the law under which the district
96-12 operates and was created;
96-13 (3) a description of the initial operations;
96-14 (4) the total start-up cost of the initial operations;
96-15 (5) the amount of state financial assistance
96-16 requested;
96-17 (6) the plan for repaying the total cost of the loan;
96-18 and
96-19 (7) any other information the Texas Water Development
96-20 Board may require to perform its duties and protect the public
96-21 interest.
96-22 (b) The Texas Water Development Board may not accept an
96-23 application for a loan from the loan fund unless it is submitted in
96-24 affidavit form by the applicant's board. The Texas Water
96-25 Development Board shall prescribe the affidavit form in its rules.
96-26 (c) The rules shall not restrict or prohibit the Texas Water
96-27 Development Board from requiring additional factual material from
96-28 an applicant.
96-29 Sec. 36.374. APPROVAL OF APPLICATION. The Texas Water
97-1 Development Board, by resolution, may approve an application if it
97-2 finds that:
97-3 (1) granting financial assistance to the applicant
97-4 will serve the public interest; and
97-5 (2) the revenue pledged by the applicant from district
97-6 taxes and fees and other sources will be sufficient to meet all the
97-7 obligations assumed by the applicant.
97-8 SECTION 3.54. Subsection (g), Section 151.318, Tax Code, is
97-9 amended to read as follows:
97-10 (g) Each person engaged in manufacturing, processing,
97-11 fabricating, or repairing tangible personal property for ultimate
97-12 sale is entitled to a refund or a reduction in the amount of tax
97-13 imposed by this chapter as provided by Subsection (h) for the
97-14 purchase of machinery, equipment, and replacement parts or
97-15 accessories with a useful life in excess of six months if the
97-16 equipment is:
97-17 (1) used or consumed in or during the actual
97-18 manufacturing, processing, fabrication, or repair of tangible
97-19 personal property for ultimate sale, and the use or consumption of
97-20 the property is necessary or essential to the manufacturing,
97-21 processing, fabrication, or repair operation, or to a pollution
97-22 control process; or
97-23 (2) specifically installed to:
97-24 (A) reduce water use and wastewater flow volumes
97-25 from the manufacturing, processing, fabrication, or repair
97-26 operation;
97-27 (B) reuse and recycle wastewater streams
97-28 generated within the manufacturing, processing, fabrication, or
97-29 repair operation; or
98-1 (C) treat wastewater from another industrial or
98-2 municipal source for the purpose of replacing existing freshwater
98-3 sources in the manufacturing, processing, fabrication, or repair
98-4 operation.
98-5 SECTION 3.55. (a) Sections 35.010 and 35.011, Water Code,
98-6 are repealed.
98-7 (b) Section 5.02, Chapter 133, Acts of the 69th Legislature,
98-8 Regular Session, 1985, is repealed.
98-9 SECTION 3.56. (a) In this section, "district" means a
98-10 groundwater conservation district created under Section 52, Article
98-11 III, or Section 59, Article XVI, Texas Constitution, that has the
98-12 authority to regulate the spacing of water wells, the production
98-13 from water wells, or both.
98-14 (b) Notwithstanding the time limitation under Subsection
98-15 (a), Section 36.1072, Water Code, as added by this Act, and
98-16 notwithstanding any provision to the contrary in prior law, a
98-17 district which was created or, if the district required a
98-18 confirmation election, a district whose creation was confirmed
98-19 before the effective date of this Act shall submit a management
98-20 plan for approval under Section 36.1072, Water Code, as added by
98-21 this Act, to the Texas Natural Resource Conservation Commission not
98-22 later than one year after the effective date of this Act.
98-23 SECTION 3.57. An area designated as a critical area under
98-24 Chapter 35, Water Code, as it existed before the effective date of
98-25 this Act, or under other prior law, shall be known and referred to
98-26 as a priority groundwater management area on or after the effective
98-27 date of this Act.
98-28 SECTION 3.58. Not later than September 1, 1998, the Texas
98-29 Natural Resource Conservation Commission must, under Chapter 35,
99-1 Water Code, as amended by this Act, make all designations of
99-2 priority groundwater management areas for which critical area
99-3 reports were required to have been completed before the effective
99-4 date of this Act under Section 35.007, Water Code, as that section
99-5 existed immediately before the effective date of this Act.
99-6 ARTICLE 4. FINANCIAL ASSISTANCE TO LOCAL GOVERNMENTS
99-7 SECTION 4.01. Section 15.431, Water Code, is amended by
99-8 amending Subsection (d) and adding Subsection (g) to read as
99-9 follows:
99-10 (d) Money appropriated by the legislature to be maintained
99-11 as principal in the fund, $10 million of the money transferred to
99-12 that fund by H.B. No. 2, Acts of the 69th Legislature, Regular
99-13 Session, 1985, and half of the money earned as interest on the
99-14 money held as principal in the agricultural trust fund shall be
99-15 maintained as principal. Money maintained as principal in the
99-16 agricultural trust fund may [not] be used by the board to make
99-17 conservation loans to borrower districts and loans to lender
99-18 districts for the purposes listed in Section 17.895 of this code.
99-19 Loans and conservation loans made under this subchapter are subject
99-20 to the provisions of Sections 17.896 through 17.903 of this code.
99-21 Repayments of principal and interest on loans and conservation
99-22 loans made under this subchapter shall be deposited in the
99-23 agricultural trust fund [spent for any purpose].
99-24 (g) In this section, "borrower district," "conservation
99-25 loan," "individual borrower," "lender district," and "loan" have
99-26 the meanings assigned those terms by Section 17.871 of this code.
99-27 SECTION 4.02. Section 16.189, Water Code, is amended to read
99-28 as follows:
99-29 Sec. 16.189. LEASE PAYMENTS. In leasing a state facility
100-1 for a term of years, the board shall require [annual] payments that
100-2 will recover over the lease period not less than the total of:
100-3 (1) all [the annual] principal and interest
100-4 requirements applicable to the debt incurred by the state in
100-5 acquiring the facility; and
100-6 (2) the state's [annual] cost for operation,
100-7 maintenance, and rehabilitation of the facility.
100-8 SECTION 4.03. Chapter 17, Water Code, is amended by adding
100-9 Subchapter L to read as follows:
100-10 SUBCHAPTER L. WATER FINANCIAL ASSISTANCE BOND PROGRAM
100-11 Sec. 17.951. DEFINITIONS. In this subchapter:
100-12 (1) "Fund" means the Texas Water Development Fund II.
100-13 (2) "Resolution" means any resolution or order
100-14 approved by the board authorizing the issuance of water financial
100-15 assistance bonds.
100-16 Sec. 17.952. ISSUANCE OF WATER FINANCIAL ASSISTANCE BONDS.
100-17 The board by resolution may provide for the issuance of water
100-18 financial assistance bonds, which shall be general obligation bonds
100-19 of the state, in an aggregate principal amount not to exceed the
100-20 principal amount authorized to be issued by Section 49-d-8, Article
100-21 III, Texas Constitution.
100-22 Sec. 17.953. CONDITIONS FOR ISSUANCE OF WATER FINANCIAL
100-23 ASSISTANCE BONDS. (a) Water financial assistance bonds may be
100-24 issued as various series and issues.
100-25 (b) Water financial assistance bonds may mature, serially or
100-26 otherwise, not later than 50 years after the date on which they are
100-27 issued.
100-28 (c) Water financial assistance bonds may be issued as bonds,
100-29 notes, or other obligations as permitted by law and may be in the
101-1 form and denominations and be issued in the manner and under the
101-2 terms, conditions, and details as provided by resolution.
101-3 (d) Water financial assistance bonds may be sold at public
101-4 or private sale at a price or prices and on terms determined by the
101-5 board.
101-6 (e) Water financial assistance bonds shall be signed and
101-7 executed as provided by resolution.
101-8 (f) Water financial assistance bonds may bear no interest or
101-9 bear interest at a rate or rates determined in accordance with law.
101-10 (g) Rates of interest on water financial assistance bonds
101-11 may be fixed, variable, floating, adjustable, or otherwise, as
101-12 determined by the board or determined pursuant to any contractual
101-13 arrangements approved by the board. The resolution may provide for
101-14 the payment of interest at any time or the periodic determination
101-15 of interest rates or interest rate periods.
101-16 Sec. 17.954. BOND ENHANCEMENT AGREEMENTS; PAYMENT OF
101-17 EXPENSES. (a) The board at any time and from time to time may
101-18 enter into one or more bond enhancement agreements that the board
101-19 determines to be necessary or appropriate to place the obligation
101-20 of the board, as represented by the water financial assistance
101-21 bonds, in whole or in part, on the interest rate, currency, cash
101-22 flow, or other basis desired by the board. A bond enhancement
101-23 agreement is an agreement for professional services and shall
101-24 contain the terms and conditions and be for the period that the
101-25 board approves.
101-26 (b) The fees and expenses of the board in connection with
101-27 the issuance of water financial assistance bonds and the providing
101-28 of financial assistance to political subdivisions may be paid from
101-29 money in the fund, provided that any payments due from the board
102-1 under a bond enhancement agreement, other than fees and expenses,
102-2 that relate to the payment of debt service on water financial
102-3 assistance bonds constitute payments of principal of and interest
102-4 on the water financial assistance bonds.
102-5 (c) Bond enhancement agreements may include, on terms and
102-6 conditions approved by the board, interest rate swap agreements;
102-7 currency swap agreements; forward payment conversion agreements;
102-8 agreements providing for payments based on levels of or changes in
102-9 interest rates or currency exchange rates; agreements to exchange
102-10 cash flows or a series of payments; agreements, including options,
102-11 puts, or calls, to hedge payment, currency, rate, spread, or other
102-12 exposure; or any other agreement that the board determines to be
102-13 necessary to further enhance the marketability, security, or
102-14 creditworthiness of water financial assistance bonds.
102-15 Sec. 17.955. PERSONS DESIGNATED TO ACT AS AGENTS OF BOARD.
102-16 (a) In the resolution the board may delegate authority to one or
102-17 more officers, employees, or agents designated by the board to act
102-18 on behalf of the board during the time any series of water
102-19 financial assistance bonds are outstanding to:
102-20 (1) fix dates, prices, interest rates, amortization
102-21 schedules, redemption features, and interest payment periods;
102-22 (2) perform any duties and obligations of the board
102-23 under a bond enhancement agreement; and
102-24 (3) perform other procedures specified in the
102-25 resolution.
102-26 (b) The person designated by the board may adjust the
102-27 interest on water financial assistance bonds and perform all duties
102-28 described in a bond enhancement agreement as necessary to permit
102-29 the water financial assistance bonds to be sold or resold at par in
103-1 conjunction with secondary market transactions.
103-2 Sec. 17.956. TEXAS WATER DEVELOPMENT FUND II. The fund is a
103-3 special fund in the state treasury, and all water financial
103-4 assistance bond proceeds shall be deposited in the state treasury
103-5 to the credit of the fund. The fund shall contain a "state
103-6 participation account," an "economically distressed areas program
103-7 account," and a "financial assistance account," and proceeds from
103-8 the sale of water financial assistance bonds issued for the purpose
103-9 of providing financial assistance to political subdivisions shall
103-10 be credited to such accounts as provided by resolution by the
103-11 board. By resolution, the board may create additional accounts
103-12 within the fund as the board determines are necessary or convenient
103-13 for the administration of the fund.
103-14 Sec. 17.957. STATE PARTICIPATION ACCOUNT. (a) The Texas
103-15 Water Development Fund II state participation account, referred to
103-16 as the "state participation account," is an account established
103-17 within the fund in the state treasury. Transfers shall be made
103-18 from this account as provided by this subchapter.
103-19 (b) The state participation account is composed of:
103-20 (1) money and assets attributable to water financial
103-21 assistance bonds designated by the board as issued for projects
103-22 described in Section 16.131;
103-23 (2) money from the sale, transfer, or lease of a
103-24 project described in Subdivision (1) that was acquired,
103-25 constructed, reconstructed, developed, or enlarged with money from
103-26 the state participation account;
103-27 (3) payments received under a bond enhancement
103-28 agreement with respect to water financial assistance bonds
103-29 designated by the board as issued for projects described in Section
104-1 16.131;
104-2 (4) investment income earned on money on deposit in
104-3 the state participation account; and
104-4 (5) any other funds, regardless of their source, that
104-5 the board directs be deposited to the credit of the state
104-6 participation account.
104-7 (c) Money on deposit in the state participation account may
104-8 be used by the board for projects described in Section 16.131 in
104-9 the manner that the board determines necessary or convenient for
104-10 the administration of the fund.
104-11 Sec. 17.958. ECONOMICALLY DISTRESSED AREAS PROGRAM ACCOUNT.
104-12 (a) The Texas Water Development Fund II economically distressed
104-13 areas program account, referred to as the "economically distressed
104-14 areas program account," is an account established within the fund
104-15 in the state treasury. Transfers shall be made from this account
104-16 as provided by this subchapter.
104-17 (b) The economically distressed areas program account is
104-18 composed of:
104-19 (1) money and assets attributable to water financial
104-20 assistance bonds designated by the board as issued for projects
104-21 described in Subchapter K;
104-22 (2) money provided by the federal government, the
104-23 state, political subdivisions, and private entities for the purpose
104-24 of paying debt service on water financial assistance bonds issued
104-25 for purposes provided by Subchapter K;
104-26 (3) payments received under a bond enhancement
104-27 agreement with respect to water financial assistance bonds
104-28 designated by the board as issued for purposes provided by
104-29 Subchapter K;
105-1 (4) investment income earned on money on deposit in
105-2 the economically distressed areas program account; and
105-3 (5) any other funds, regardless of their source, that
105-4 the board directs be deposited to the credit of the economically
105-5 distressed areas program account.
105-6 (c) Money on deposit in the economically distressed areas
105-7 program account may be used by the board for purposes provided by
105-8 Subchapter K in the manner that the board determines necessary or
105-9 convenient for the administration of the fund.
105-10 Sec. 17.959. FINANCIAL ASSISTANCE ACCOUNT. (a) The Texas
105-11 Water Development Fund II water financial assistance account,
105-12 referred to as the "financial assistance account," is an account
105-13 established within the fund in the state treasury. Transfers shall
105-14 be made from this account as provided by this subchapter.
105-15 (b) The financial assistance account is composed of:
105-16 (1) money and assets attributable to water financial
105-17 assistance bonds designated by the board as issued for purposes
105-18 described in Section 49-d-8, Article III, Texas Constitution, other
105-19 than for purposes described in Sections 17.957 and 17.958;
105-20 (2) payments received under a bond enhancement
105-21 agreement with respect to water financial assistance bonds
105-22 designated by the board as issued for purposes described in Section
105-23 49-d-8, Article III, Texas Constitution, other than for purposes
105-24 described in Sections 17.957 and 17.958;
105-25 (3) investment income earned on money on deposit in
105-26 the financial assistance account; and
105-27 (4) any other funds, regardless of their source, that
105-28 the board directs be deposited to the credit of the financial
105-29 assistance account.
106-1 (c) Money on deposit in the financial assistance account may
106-2 be used by the board for any one or more of the purposes described
106-3 in Section 49-d-8, Article III, Texas Constitution, other than for
106-4 purposes described in Sections 17.957 and 17.958, in the manner
106-5 that the board determines necessary or convenient for the
106-6 administration of the fund.
106-7 Sec. 17.960. BOND RESOLUTIONS. (a) In the resolution, the
106-8 board may make additional covenants with respect to water financial
106-9 assistance bonds and may provide for:
106-10 (1) the flow of funds;
106-11 (2) the establishment of accounts and subaccounts
106-12 within the fund that the board determines are necessary or
106-13 convenient for the administration of the fund;
106-14 (3) at the discretion of the board, the payment of
106-15 fees and expenses of the board in connection with providing
106-16 financial assistance to political subdivisions as the board
106-17 determines are necessary or convenient for the administration of
106-18 the fund;
106-19 (4) the maintenance, investment, and management of
106-20 money within the fund and any accounts established by resolution by
106-21 the board; and
106-22 (5) any other provisions and covenants that the board
106-23 determines are necessary or convenient for the administration of
106-24 the fund.
106-25 (b) The board may invest and reinvest money in the fund and
106-26 any account therein in any obligations or securities as provided by
106-27 the resolution or by rule adopted by the board.
106-28 (c) The board may adopt and have executed any other
106-29 proceedings, agreements, or trust agreements or instruments
107-1 necessary and convenient in the issuance of water financial
107-2 assistance bonds, including, without limitation, bond enhancement
107-3 agreements.
107-4 Sec. 17.961. TRANSFERS TO REVOLVING FUNDS. (a) In order to
107-5 implement and administer a revolving loan program established under
107-6 Title VI of the Federal Water Pollution Control Act (33 U.S.C.
107-7 Section 1381 et seq.), the board may direct the comptroller to
107-8 transfer amounts from the financial assistance account to the state
107-9 water pollution control revolving fund created by Section 15.601 to
107-10 provide financial assistance pursuant to this subchapter.
107-11 (b) In order to implement and administer a revolving loan
107-12 program established by any other federal legislation, including,
107-13 without limitation, Title XIV of the federal Public Health Service
107-14 Act, or any federal agency program under which an additional state
107-15 revolving fund, as defined in Section 15.602, has been established,
107-16 the board may direct the comptroller to transfer amounts from the
107-17 financial assistance account to such additional state revolving
107-18 fund to provide financial assistance pursuant to this subchapter.
107-19 (c) The board shall use the state water pollution control
107-20 revolving fund in accordance with Section 15.604(a)(4) and Section
107-21 603(d)(4), Federal Water Pollution Control Act (33 U.S.C. Section
107-22 1383), as a source of revenue to be deposited in accordance with
107-23 this subchapter for the payment of principal and interest on water
107-24 financial assistance bonds issued by the board, the proceeds of
107-25 which are deposited into the state water pollution control
107-26 revolving fund, and to make payments under a bond enhancement
107-27 agreement with respect to principal or interest on the water
107-28 financial assistance bonds.
107-29 (d) In the event amounts are transferred to any additional
108-1 state revolving fund, as defined in Section 15.602, pursuant to
108-2 Subsection (b), the board shall, to the extent permitted by the
108-3 federal legislation or federal agency program under which such
108-4 additional state revolving fund was established, use the additional
108-5 state revolving fund as a source of revenue to be deposited in
108-6 accordance with this subchapter for the payment of principal and
108-7 interest on water financial assistance bonds issued by the board,
108-8 the proceeds of which are deposited into the additional state
108-9 revolving fund, and to make payments under a bond enhancement
108-10 agreement with respect to principal or interest on the water
108-11 financial assistance bonds.
108-12 Sec. 17.962. STATE APPROVALS. (a) Water financial
108-13 assistance bonds may not be issued under this subchapter unless
108-14 such issuance has been reviewed and approved by the bond review
108-15 board.
108-16 (b) The proceedings relating to the water financial
108-17 assistance bonds issued under this subchapter are subject to review
108-18 and approval by the attorney general in the same manner and with
108-19 the same effect as provided by Chapter 656, Acts of the 68th
108-20 Legislature, Regular Session, 1983 (Article 717q, Vernon's Texas
108-21 Civil Statutes).
108-22 (c) After approval by the attorney general of the
108-23 proceedings relating to water financial assistance bonds issued
108-24 under this subchapter, registration of the proceedings by the
108-25 comptroller, and delivery of the water financial assistance bonds
108-26 to the purchasers, the water financial assistance bonds are
108-27 incontestable and constitute general obligations of the state.
108-28 Sec. 17.963. PAYMENT OF BOARD OBLIGATIONS. (a) The board
108-29 shall cooperate with the comptroller to develop procedures for the
109-1 payment of principal and interest on water financial assistance
109-2 bonds and any obligation under a bond enhancement agreement, as the
109-3 same become due and owing.
109-4 (b) If there is not enough money in any account of the fund
109-5 available to pay the principal and interest on water financial
109-6 assistance bonds issued for such account, including money to make
109-7 payments by the board under a bond enhancement agreement with
109-8 respect to principal or interest on such water financial assistance
109-9 bonds, the board shall notify the comptroller of such occurrence,
109-10 and the comptroller shall transfer out of the first money coming
109-11 into the state treasury not otherwise appropriated by the
109-12 constitution the amount required to pay the obligations of the
109-13 board that are due and owing. The comptroller shall make the
109-14 transfers required by Section 49-d-8, Article III, Texas
109-15 Constitution, and this subchapter in the manner specified in the
109-16 resolution.
109-17 Sec. 17.964. ELIGIBLE SECURITY. Water financial assistance
109-18 bonds are eligible to secure deposits of public funds of the state
109-19 and political subdivisions of the state. Water financial
109-20 assistance bonds are lawful and sufficient security for deposits to
109-21 the extent of their face value.
109-22 Sec. 17.965. LEGAL INVESTMENTS. Water financial assistance
109-23 bonds are legal and authorized investments for:
109-24 (1) banks;
109-25 (2) savings banks;
109-26 (3) trust companies;
109-27 (4) savings and loan associations;
109-28 (5) insurance companies;
109-29 (6) fiduciaries;
110-1 (7) trustees;
110-2 (8) guardians; and
110-3 (9) sinking funds and other public funds of the state
110-4 and its agencies and of political subdivisions of the state.
110-5 Sec. 17.966. MUTILATED, LOST, OR DESTROYED BONDS. The board
110-6 may provide for the replacement of mutilated, lost, or destroyed
110-7 water financial assistance bonds.
110-8 Sec. 17.967. REFUNDING BONDS. (a) The board by resolution
110-9 may provide for the issuance of water financial assistance bonds to
110-10 refund outstanding bonds and water financial assistance bonds
110-11 issued under this chapter and federal contractual obligations
110-12 incurred under Section 49-d, Article III, Texas Constitution.
110-13 (b) The board may sell the refunding water financial
110-14 assistance bonds and use the proceeds to retire any of the
110-15 outstanding obligations described in Subsection (a), exchange the
110-16 refunding water financial assistance bonds for the outstanding
110-17 bonds or water financial assistance bonds, or refund any of the
110-18 outstanding obligations described in Subsection (a) in the manner
110-19 provided by any other applicable statute, including Chapter 503,
110-20 Acts of the 54th Legislature, 1955 (Article 717k, Vernon's Texas
110-21 Civil Statutes), and Chapter 784, Acts of the 61st Legislature,
110-22 Regular Session, 1969 (Article 717k-3, Vernon's Texas Civil
110-23 Statutes).
110-24 Sec. 17.968. SALE OF POLITICAL SUBDIVISION BONDS BY THE
110-25 BOARD; USE OF PROCEEDS. (a) The board may sell or dispose of
110-26 political subdivision bonds purchased with money in the fund to any
110-27 person, including, without limitation, the Texas Water Resources
110-28 Finance Authority, and the board, in such manner as it shall
110-29 determine, may apply the proceeds of the sale of political
111-1 subdivision bonds held by the board to:
111-2 (1) pay debt service on water financial assistance
111-3 bonds issued under this subchapter; or
111-4 (2) provide financial assistance to political
111-5 subdivisions for any one or more of the purposes authorized by
111-6 Section 49-d-8, Article III, Texas Constitution.
111-7 (b) The board shall sell the political subdivision bonds at
111-8 the price and under the terms that it determines to be reasonable.
111-9 Sec. 17.969. TAX EXEMPT BONDS. Since the board is
111-10 performing an essential governmental function in the exercise of
111-11 the powers conferred on it by this chapter, water financial
111-12 assistance bonds issued under this subchapter and the interest and
111-13 income from the water financial assistance bonds, including any
111-14 profit made on the sale of water financial assistance bonds, and
111-15 all fees, charges, gifts, grants, revenues, receipts, and other
111-16 money received or pledged to pay or secure the payment of water
111-17 financial assistance bonds are free from taxation and assessments
111-18 of every kind by this state and any city, county, district,
111-19 authority, or other political subdivision of this state.
111-20 Sec. 17.970. ENFORCEMENT BY MANDAMUS. Payment of water
111-21 financial assistance bonds and obligations incurred under bond
111-22 enhancement agreements and performance of official duties
111-23 prescribed by Section 49-d-8, Article III, Texas Constitution, and
111-24 this subchapter may be enforced in a court of competent
111-25 jurisdiction by mandamus or other appropriate proceedings.
111-26 Sec. 17.971. SUBCHAPTER CUMULATIVE OF OTHER LAWS. (a) This
111-27 subchapter is cumulative of other laws on the subject, and the
111-28 board may use provisions of other applicable laws in the issuance
111-29 of water financial assistance bonds and the execution of bond
112-1 enhancement agreements, but this subchapter is wholly sufficient
112-2 authority for the issuance of water financial assistance bonds, the
112-3 execution of bond enhancement agreements, and the performance of
112-4 all other acts and procedures authorized by this subchapter.
112-5 (b) In addition to other authority granted by this
112-6 subchapter, the board may exercise the authority granted to the
112-7 governing body of an issuer with regard to the issuance of
112-8 obligations under Chapter 656, Acts of the 68th Legislature,
112-9 Regular Session, 1983 (Article 717q, Vernon's Texas Civil
112-10 Statutes).
112-11 (c) In exercising the powers granted to the board under this
112-12 subchapter, the board may exercise any powers granted to it under
112-13 this chapter and Chapter 16 including, without limitation, the
112-14 powers described in Subchapters D, E, F, G, and K, notwithstanding
112-15 any provision in this chapter or Chapter 16 that may be
112-16 inconsistent with or in conflict with the provisions of this
112-17 subchapter as a result of the establishment of the fund as a fund
112-18 separate and distinct from the existing Texas Water Development
112-19 Fund, it being the intent of the legislature that the financial
112-20 assistance made available to political subdivisions under this
112-21 subchapter, in pursuance of the authority granted by Section
112-22 49-d-8, Article III, Texas Constitution, be provided by the board
112-23 in the manner the board deems necessary and convenient to achieve
112-24 the purposes of Section 49-d-8, Article III, Texas Constitution,
112-25 and notwithstanding any other existing provisions in this chapter
112-26 or Chapter 16, the provisions of this chapter and Chapter 16 shall
112-27 be inclusive of the provisions of this subchapter and Section
112-28 49-d-8, Article III, Texas Constitution.
112-29 SECTION 4.04. Subdivision (7), Section 17.001, Water Code,
113-1 is amended to read as follows:
113-2 (7) "Water supply project" means:
113-3 (A) any engineering undertaking or work to
113-4 conserve and develop surface or subsurface water resources of the
113-5 state, including the control, storage, and preservation of its
113-6 storm water and floodwater and the water of its rivers and streams
113-7 for all useful and lawful purposes by the acquisition, improvement,
113-8 extension, or construction of dams, reservoirs, and other water
113-9 storage projects, which may include flood storage, including
113-10 underground storage projects, filtration and water treatment
113-11 plants, including any system necessary to transport water from
113-12 storage to points of distribution or from storage to filtration and
113-13 treatment plants, including facilities for transporting water
113-14 therefrom to wholesale purchasers or to retail purchasers as
113-15 authorized by Section 17.072(c) of this code, by the acquisition,
113-16 by purchase of rights in [underground] water, by the drilling of
113-17 wells, or for any one or more of these purposes or methods; [or]
113-18 (B) any engineering undertaking or work outside
113-19 the state to provide for the maintenance and enhancement of the
113-20 quality of water by eliminating saline inflow through well pumping
113-21 and deep well injection of brine; or
113-22 (C) any undertaking or work by Texas political
113-23 subdivisions to conserve, convey, or develop surface or subsurface
113-24 water resources in areas outside Texas if such undertaking or work
113-25 results in water being available for use in or for the benefit of
113-26 Texas.
113-27 SECTION 4.05. Section 17.001, Water Code, is amended by
113-28 amending Subdivision (17) and adding Subdivision (25) to read as
113-29 follows:
114-1 (17) "Financial assistance" means any loan of funds
114-2 from the water supply account, the water quality enhancement
114-3 account, or the flood control account to a political subdivision
114-4 for construction of a water supply project, treatment works, or
114-5 flood control measures through the purchase of bonds or other
114-6 obligations of the political subdivision, and any loan of funds the
114-7 source of which is the proceeds from water financial assistance
114-8 bonds.
114-9 (25) "Water financial assistance bonds" means the
114-10 Texas Water Development Bonds authorized to be issued by Section
114-11 49-d-8, Article III, Texas Constitution, and dedicated to use for
114-12 the purposes described in that section.
114-13 SECTION 4.06. Section 17.011, Water Code, is amended by
114-14 adding Subsection (c) to read as follows:
114-15 (c) Notwithstanding any other provision of this section, the
114-16 board by resolution may issue water financial assistance bonds for
114-17 any one or more of the purposes described in Section 49-d-8,
114-18 Article III, Texas Constitution, in an aggregate principal amount
114-19 not to exceed the amount of bonds authorized by Section 49-d-8,
114-20 Article III, Texas Constitution, in accordance with the provisions
114-21 of Subchapter L.
114-22 SECTION 4.07. Section 17.0111, Water Code, is amended to
114-23 read as follows:
114-24 Sec. 17.0111. DEDICATION OF CERTAIN BONDS. No more than
114-25 $250,000,000 in principal [Fifty percent of the] amount of bonds
114-26 authorized by Article III, Section 49-d-7, of the Texas
114-27 Constitution, and issued under either that section or Article III,
114-28 Section 49-d-8, of the Texas Constitution, may be [is] dedicated to
114-29 the purposes provided by Subchapter K [of this chapter].
115-1 SECTION 4.08. Section 17.182, Water Code, is amended to read
115-2 as follows:
115-3 Sec. 17.182. PROCEEDS FROM SALE. Unless used to pay debt
115-4 service on bonds issued under this chapter, the proceeds from the
115-5 sale of political subdivision bonds held by the board either shall
115-6 be credited to the account from which financial assistance was made
115-7 to the political subdivision, except that accrued interest shall be
115-8 credited to the interest and sinking fund, or shall be deposited to
115-9 the credit of the Texas Water Development Fund II, established
115-10 within the state treasury pursuant to Section 49-d-8, Article III,
115-11 Texas Constitution. However, no such proceeds shall be deposited
115-12 to the credit of the Texas Water Development Fund II unless the
115-13 executive administrator certifies to the board that the transfer of
115-14 such proceeds into the Texas Water Development Fund II will not
115-15 cause the board, in the fiscal year the transfer is made, to direct
115-16 the comptroller to transfer out of the first money coming into the
115-17 state treasury during that fiscal year funds sufficient for the
115-18 payment of principal of or interest on water development bonds,
115-19 other than water development bonds issued for the purposes
115-20 described in Subsection (e), Section 49-d-7, Article III, Texas
115-21 Constitution, coming due in that fiscal year.
115-22 SECTION 4.09. Section 17.278, Water Code, is amended to read
115-23 as follows:
115-24 Sec. 17.278. FINDINGS REGARDING PERMITS. If an application
115-25 includes a proposal for a wastewater treatment plant, the board may
115-26 not deliver funds for the wastewater treatment plant until the
115-27 applicant has obtained a permit for the construction and operation
115-28 of the plant and approval of the plans and specifications for the
115-29 plant from the commission. If an application includes a proposal
116-1 for a wastewater treatment plant that is located outside the
116-2 jurisdiction of this state and that is not subject to the
116-3 permitting authority of the commission, the board may not deliver
116-4 funds for the wastewater treatment plant until after the board
116-5 reviews the plans and specifications in coordination with the
116-6 commission and finds that the wastewater treatment plant is capable
116-7 of producing effluent that will meet federal and Texas-approved
116-8 water quality standards.
116-9 ARTICLE 5. SMALL COMMUNITIES ASSISTANCE
116-10 SECTION 5.01. Section 5.311, Water Code, is amended to read
116-11 as follows:
116-12 Sec. 5.311. DELEGATION OF RESPONSIBILITY. (a) The
116-13 commission may delegate to an administrative law judge of the State
116-14 Office of Administrative Hearings the responsibility to hear any
116-15 matter before the commission and the authority to issue orders
116-16 related to interim rates under Chapter 13.
116-17 (b) Except for a hearing related to interim rates as
116-18 provided in Subsection (a), the [The] administrative law judge
116-19 shall report to the commission on a [the] hearing in the manner
116-20 provided by law.
116-21 SECTION 5.02. Subdivisions (11), (21), and (24), Section
116-22 13.002, Water Code, are amended to read as follows:
116-23 (11) "Member" means a person who holds a membership in
116-24 a water supply or sewer service corporation and [who either
116-25 receives water or sewer utility service from the corporation or] is
116-26 a record owner of a fee simple title to property in an area served
116-27 by a water supply or sewer service corporation or a person who is
116-28 granted a membership and who either currently receives or will be
116-29 eligible to receive water or sewer utility service from the
117-1 corporation. In determining member control of a water supply or
117-2 sewer service corporation, a person is entitled to only one vote
117-3 regardless of the number of memberships the person owns.
117-4 (21) "Service" means any act [done, rendered, or]
117-5 performed, anything furnished or supplied, and any facilities or
117-6 lines dedicated or [facility] used[, furnished, or supplied] by a
117-7 retail public utility in the performance of its duties under this
117-8 chapter to its patrons, its employees, other retail public
117-9 utilities, and the public, as well as the interchange of facilities
117-10 between two or more retail public utilities.
117-11 (24) "Water supply or sewer service corporation" means
117-12 a nonprofit[, member-owned, member-controlled] corporation
117-13 organized and operating under Chapter 76, Acts of the 43rd
117-14 Legislature, 1st Called Session, 1933 (Article 1434a, Vernon's
117-15 Texas Civil Statutes) that provides potable water service or sewer
117-16 service for compensation and that has adopted and is operating in
117-17 accordance with bylaws or articles of incorporation which ensure
117-18 that it is member-owned and member-controlled. The term does not
117-19 include a corporation that provides retail water or sewer service
117-20 to a person who is not a member, except that the corporation may
117-21 provide retail water or sewer service to a person who is not a
117-22 member if the person only builds on or develops property to sell to
117-23 another and the service is provided on an interim basis before the
117-24 property is sold.
117-25 SECTION 5.03. Section 13.181, Water Code, is amended to read
117-26 as follows:
117-27 Sec. 13.181. POWER TO ENSURE COMPLIANCE; RATE REGULATION.
117-28 (a) Except for the provisions of Section 13.192, this subchapter
117-29 shall apply only to a utility and shall not be applied to
118-1 municipalities, counties, districts, or water supply or sewer
118-2 service corporations.
118-3 (b) Subject to this chapter, the commission has all
118-4 authority and power of the state to ensure compliance with the
118-5 obligations of utilities under this chapter. For this purpose the
118-6 regulatory authority may fix and regulate rates of utilities,
118-7 including rules and regulations for determining the classification
118-8 of customers and services and for determining the applicability of
118-9 rates. A rule or order of the regulatory authority may not
118-10 conflict with the rulings of any federal regulatory body. [Except
118-11 Section 13.192, this subchapter shall apply only to a utility and
118-12 shall not be applied to municipalities, counties, districts, or
118-13 water supply or sewer service corporations.] The commission may
118-14 adopt rules which authorize a utility which is permitted under
118-15 Section 13.242(c) to provide service without a certificate of
118-16 public convenience and necessity to request or implement a rate
118-17 increase and operate according to rules, regulations, and standards
118-18 of service other than those otherwise required under this chapter
118-19 provided that rates are just and reasonable for customers and the
118-20 utility and that service is safe, adequate, efficient, and
118-21 reasonable.
118-22 SECTION 5.04. Section 13.183, Water Code, is amended by
118-23 adding Subsection (c) to read as follows:
118-24 (c) To ensure that retail customers receive a higher quality
118-25 or more reliable water or sewer service, to encourage
118-26 regionalization, or to maintain financially stable and technically
118-27 sound utilities, the regulatory authority may develop methodologies
118-28 for water or wastewater rates based on factors other than rate of
118-29 return and those specified in Section 13.185. Overall revenues
119-1 determined pursuant to a methodology developed under this section
119-2 must provide revenues to the utility that satisfy the requirements
119-3 of Subsection (a) but must also be reasonable for the customers in
119-4 consideration of the enhanced quality or reliability of the
119-5 services provided.
119-6 SECTION 5.05. Subsection (a), Section 13.184, Water Code, is
119-7 amended to read as follows:
119-8 (a) Unless the regulatory authority adopts rules to further
119-9 the purposes stated in Section 13.183(c), the [The] regulatory
119-10 authority may not prescribe any rate that will yield more than a
119-11 fair return on the invested capital used and useful in rendering
119-12 service to the public.
119-13 SECTION 5.06. Subsection (a), Section 13.185, Water Code, is
119-14 amended to read as follows:
119-15 (a) Except as provided in Sections 13.183(c) and 13.184(a),
119-16 the [The] components of invested capital and net income shall be
119-17 determined according to the rules stated in this section.
119-18 SECTION 5.07. Subchapter G, Chapter 13, Water Code, is
119-19 amended by adding Section 13.241 to read as follows:
119-20 Sec. 13.241. GRANTING OR AMENDING CERTIFICATES. In
119-21 determining whether to grant or amend a certificate of public
119-22 convenience and necessity, the commission shall ensure that the
119-23 groundwater and surface water resources in Texas are adequately
119-24 protected and efficiently used and shall consider regionalization
119-25 or consolidation of systems whenever it is economically feasible or
119-26 otherwise in the public interest. A retail public utility
119-27 requesting a certificate of public convenience and necessity to
119-28 provide water or sewer service must satisfy the commission that a
119-29 safe, continuous, and adequate supply of drinking water meeting the
120-1 requirements of Chapter 341, Health and Safety Code, or this code
120-2 or continuous and adequate sewer service meeting permit, water
120-3 quality, and other requirements of this code will be provided to
120-4 the public and that the retail public utility will maintain the
120-5 necessary financial resources and managerial expertise to provide
120-6 continuous and adequate service to the public.
120-7 SECTION 5.08. Section 13.246, Water Code, is amended by
120-8 amending Subsection (c) and adding Subsections (d) and (e) to read
120-9 as follows:
120-10 (c) Certificates of convenience and necessity shall be
120-11 granted or amended on a nondiscriminatory basis after
120-12 consideration by the commission of the adequacy of service
120-13 currently provided to the requested area, the need for additional
120-14 service in the requested area, the effect of the granting of a
120-15 certificate on the recipient of the certificate and on any retail
120-16 public utility of the same kind already serving the proximate area,
120-17 the ability of the applicant to provide adequate service, the
120-18 efforts of the applicant to extend service to any economically
120-19 distressed areas located within the service areas certificated to
120-20 the applicant, the feasibility of obtaining service from an
120-21 adjacent retail public utility, the financial stability of the
120-22 applicant, including, if applicable, the adequacy of the
120-23 applicant's debt-equity ratio, environmental integrity, and the
120-24 probable improvement of service or lowering of cost to consumers in
120-25 that area resulting from the granting of the certificate. In this
120-26 subsection, "economically distressed areas" are those areas as
120-27 defined in Chapter 15.
120-28 (d) The commission may require that an applicant submit a
120-29 business plan demonstrating adequate financial, managerial, and
121-1 technical capability for providing continuous and adequate service
121-2 to the requested area and any areas currently certificated to the
121-3 applicant. The commission may include conditions in the
121-4 certificate of public convenience and necessity to ensure that the
121-5 certificate holder complies with the business plan.
121-6 (e) The commission may require an applicant to provide
121-7 financial assurance in a form acceptable to the commission to
121-8 ensure that continuous and adequate service is provided.
121-9 SECTION 5.09. Section 13.253, Water Code, is amended to read
121-10 as follows:
121-11 Sec. 13.253. IMPROVEMENTS IN SERVICE; INTERCONNECTING
121-12 SERVICE. After notice and hearing, the commission may:
121-13 (1) order any retail public utility that possesses or
121-14 is required by law to possess a certificate of public convenience
121-15 and necessity to provide specified improvements in its service in a
121-16 defined area if service in that area is inadequate or is
121-17 substantially inferior to service in a comparable area and it is
121-18 reasonable to require the retail public utility to provide the
121-19 improved service;
121-20 (2) order two or more retail public utilities that
121-21 hold or are required by this code to hold a certificate of public
121-22 convenience and necessity [or water supply or sewer service
121-23 corporations] to establish specified facilities for the
121-24 interconnecting service; or
121-25 (3) issue an emergency order, with or without a
121-26 hearing, under Section 13.041 of this code.
121-27 SECTION 5.10. Section 13.254, Water Code, is amended to read
121-28 as follows:
121-29 Sec. 13.254. REVOCATION OR AMENDMENT OF CERTIFICATE.
122-1 (a) The commission at any time after notice and hearing may revoke
122-2 or amend any certificate of public convenience and necessity with
122-3 the written consent of the certificate holder or if it finds that:
122-4 (1) the certificate holder has never provided, is no
122-5 longer providing, or has failed to provide continuous and adequate
122-6 service in the area, or part of the area, covered by the
122-7 certificate including economically distressed areas as defined in
122-8 Chapter 15;
122-9 (2) the cost of providing service makes the service
122-10 offered by the certificate holder so prohibitively expensive as to
122-11 constitute denial of service, or for commercial developments or
122-12 residential developments with lot sizes of less than two acres, the
122-13 cost of obtaining service from the currently certificated retail
122-14 public utility makes the development economically infeasible but
122-15 not necessarily prohibitively expensive;
122-16 (3) the certificate holder has agreed to allow another
122-17 retail public utility to provide service within its service area
122-18 without amending its certificate; or
122-19 (4) the certificate holder has failed to file a cease
122-20 and desist action pursuant to Section 13.252 within 90 days of the
122-21 date that it became aware that another retail public utility was
122-22 providing service within the certificate holder's service area,
122-23 unless the certificate holder is able to demonstrate good cause for
122-24 its failure to file such action within the 90-day period.
122-25 (b) Upon written request from the certificate holder, the
122-26 executive director may cancel the certificate of a utility or water
122-27 supply corporation authorized by rule to operate without a
122-28 certificate of public convenience and necessity under Section
122-29 13.242(c).
123-1 (c) If the certificate of any retail public utility is
123-2 revoked or amended, the commission may require one or more retail
123-3 public utilities, with their consent, or one or more public
123-4 utilities to provide service in the area in question.
123-5 (d) A retail public utility may not in any way render retail
123-6 water or sewer service directly or indirectly to the public in an
123-7 area which has been decertified under this section without the
123-8 consent of the retail public utility which previously held the
123-9 certificate of public convenience and necessity unless it has first
123-10 obtained from the commission a certificate of public convenience
123-11 and necessity. If the commission decertifies a retail public
123-12 utility without its consent under this section, the commission
123-13 shall determine the extent to which any utility facilities
123-14 currently used and useful for providing service or utility
123-15 facilities constructed for the purpose of serving the area being
123-16 decertified will be rendered useless as a result of this commission
123-17 action. The commission shall also determine the impact on the
123-18 retail public utility's ability to repay any debts owed for
123-19 facilities or services dedicated to serve the area being
123-20 decertified. As a condition of granting a certificate of public
123-21 convenience and necessity to another retail public utility to serve
123-22 the area, the commission shall require the new utility service
123-23 provider to compensate the decertified retail public utility. In
123-24 determining the amount of compensation, the commission shall
123-25 consider:
123-26 (1) any revenues which would have been generated by
123-27 existing or potential customers in the area decertified to the
123-28 extent that those revenues would have been used to repay debts owed
123-29 to the state or federal government for facilities constructed for
124-1 the purpose of providing service to the area decertified;
124-2 (2) any revenues which would have been generated by
124-3 existing or potential customers in the area decertified to the
124-4 extent that those revenues would have been used to repay debts to
124-5 persons other than affiliated interests for the construction of
124-6 facilities to provide service to the area decertified; and
124-7 (3) the retail public utility's actual unrecovered
124-8 investment in any facilities no longer useful or expected to be
124-9 needed by the retail public utility for serving its remaining
124-10 service area within a future time period that would allow recovery
124-11 of the retail public utility's actual unrecovered investment,
124-12 unless the commission's action is for a reason other than the
124-13 certificated retail public utility's failure to extend service to
124-14 qualified applicants in the area within a reasonable time period or
124-15 because service to qualified service applicants is deemed
124-16 prohibitively expensive.
124-17 (e) The commission may require payment of the compensation
124-18 to a decertified retail public utility in a lump sum or may allow
124-19 payment to be made by the newly certificated retail public utility
124-20 on a per-customer basis as new customers are added in the
124-21 decertified area, after considering the financial impact on the
124-22 decertified retail public utility.
124-23 SECTION 5.11. Subsection (a), Section 13.301, Water Code, is
124-24 amended to read as follows:
124-25 (a) A utility or a water supply or sewer service corporation
124-26 shall notify the commission by filing a written application and
124-27 shall give public notice unless public notice is waived by the
124-28 executive director for good cause shown at least 120 days before
124-29 the effective date of any sale, acquisition, lease, or rental of
125-1 any water or sewer system required by law to possess a certificate
125-2 of public convenience and necessity or of any merger or
125-3 consolidation with such a utility or water supply or sewer service
125-4 corporation. The application shall include a business plan
125-5 demonstrating adequate financial, managerial, and technical
125-6 capability of the person purchasing or acquiring the water or sewer
125-7 system for providing continuous and adequate service to the
125-8 requested area and any areas currently certificated to the person
125-9 purchasing or acquiring the water or sewer system.
125-10 SECTION 5.12. Subsection (a), Section 13.302, Water Code, is
125-11 amended to read as follows:
125-12 (a) A utility may not purchase voting stock in another
125-13 utility doing business in this state and a person may not acquire a
125-14 controlling interest in a utility doing business in this state
125-15 unless the person or utility notifies the commission by filing a
125-16 written application of the proposed purchase or acquisition not
125-17 later than the 61st day before the date on which the transaction is
125-18 to occur. If a person is acquiring a controlling interest, the
125-19 application must also include a business plan demonstrating
125-20 adequate financial, managerial, and technical capability of the
125-21 person acquiring controlling interest in the utility for providing
125-22 continuous and adequate service.
125-23 SECTION 5.13. Section 13.412, Water Code, is amended by
125-24 adding Subsections (f) and (g) to read as follows:
125-25 (f) Notwithstanding Section 64.021, Civil Practice and
125-26 Remedies Code, a receiver appointed under this section may seek
125-27 commission approval to acquire the water or sewer utility
125-28 facilities and transfer the certificate of public convenience and
125-29 necessity of the system in receivership. Application shall be in
126-1 accordance with Subchapter H.
126-2 (g) For purposes of this section and Section 13.4132 of this
126-3 code, abandonment may include but is not limited to:
126-4 (1) failure to pay bills or other obligations to
126-5 electric or gas utilities or other retail public utilities
126-6 resulting in notices of discontinuance of necessary services;
126-7 (2) failure to provide appropriate water or wastewater
126-8 treatment resulting in potential health hazards;
126-9 (3) failure to adequately maintain facilities
126-10 resulting in potential health hazards, extended outages, or
126-11 repeated service interruptions;
126-12 (4) failure to provide adequate notice to customers of
126-13 existing or potential health hazards;
126-14 (5) failure to secure an alternative water supply when
126-15 available during outages;
126-16 (6) displaying a pattern of hostility or repeated
126-17 failure to respond to customers or the commission;
126-18 (7) notification by the utility owner to the
126-19 commission that the owner is abandoning the system; or
126-20 (8) inability of the commission to contact the utility
126-21 because the utility has failed to keep the commission informed on
126-22 how to contact the utility for normal business purposes or
126-23 emergencies.
126-24 SECTION 5.14. Subsections (a) and (c), Section 13.4132,
126-25 Water Code, are amended to read as follows:
126-26 (a) The commission, after providing to the utility notice
126-27 and an opportunity to be heard at a commission meeting as an item
126-28 on its agenda [for a hearing], may authorize a willing person to
126-29 temporarily manage and operate a utility that has discontinued or
127-1 abandoned operations or the provision of services or is being or
127-2 has been referred to the attorney general for the appointment of a
127-3 receiver under Section 13.412 of this code.
127-4 (c) A person appointed under this section has the powers and
127-5 duties necessary to ensure the continued operation of the utility
127-6 and the provision of continuous and adequate services to customers,
127-7 including the power and duty to:
127-8 (1) read meters;
127-9 (2) bill for utility services;
127-10 (3) collect revenues;
127-11 (4) disburse funds; [and]
127-12 (5) access all system components; and
127-13 (6) request rate increases.
127-14 SECTION 5.15. Section 15.602, Water Code, is amended to read
127-15 as follows:
127-16 Sec. 15.602. DEFINITIONS. In this subchapter:
127-17 (1) "Additional state revolving fund" means any state
127-18 revolving fund hereafter established by the board to provide
127-19 financial assistance to political subdivisions for public works in
127-20 accordance with a capitalization grant program hereafter
127-21 established by a federal agency or otherwise authorized by federal
127-22 law.
127-23 (2) "Authorized investments" means any authorized
127-24 investments described in Section 404.024, Government Code.
127-25 (3) "Community water system" means a public water
127-26 system that:
127-27 (A) serves at least 15 service connections used
127-28 by year-round residents of the area served by the system; or
127-29 (B) regularly serves at least 25 year-round
128-1 residents.
128-2 (4) "Construction" shall have the meaning assigned by
128-3 the Federal Water Pollution Control Act (33 U.S.C. 1251 et seq.).
128-4 (5) "Disadvantaged community" means an area meeting
128-5 criteria established by board rule, which criteria shall be based
128-6 on measures that may include single-family residential property
128-7 valuation, income levels of residents of the area, or other
128-8 similarly appropriate measures.
128-9 (6) [(4)] "Federal Act" means the Federal Water
128-10 Pollution Control Act, as amended (33 U.S.C. 1251 et seq.).
128-11 (7) "Nonprofit noncommunity water system" means a
128-12 public water system that is not operated for profit and that:
128-13 (A) is owned by a political subdivision or
128-14 nonprofit entity; and
128-15 (B) is not a community water system.
128-16 (8) [(5)] "Political subdivision" means a
128-17 municipality, intermunicipal, interstate, or state agency, [or] any
128-18 other public entity eligible for assistance under this subchapter,
128-19 or a nonprofit water supply corporation created and operating under
128-20 Chapter 76, Acts of the 43rd Legislature, 1st Called Session, 1933
128-21 (Article 1434a, Vernon's Texas Civil Statutes), if such entity is
128-22 eligible for financial assistance under federal law establishing
128-23 the state revolving fund or an additional state revolving fund.
128-24 (9) "Public water system" means a system that is owned
128-25 by any person and that meets the definition of public water system
128-26 in the Safe Drinking Water Act.
128-27 (10) [(6)] "Public works" means any project to
128-28 acquire, construct, improve, repair, or otherwise provide any
128-29 buildings, structures, facilities, equipment, or other real or
129-1 personal property or improvements designed for public use,
129-2 protection, or enjoyment undertaken by a political subdivision and
129-3 paid for, in whole or in part, out of public funds.
129-4 (11) [(7)] "Revolving fund" means the state water
129-5 pollution control revolving fund.
129-6 (12) "Safe Drinking Water Act" means Title XIV of the
129-7 federal Public Health Service Act, commonly known as the Safe
129-8 Drinking Water Act, as amended (42 U.S.C. Section 300f et seq.).
129-9 (13) "Safe drinking water revolving fund" means the
129-10 fund established by the board as an additional state revolving fund
129-11 to provide financial assistance in accordance with the federal
129-12 program established pursuant to the provisions of the Safe Drinking
129-13 Water Act.
129-14 (14) [(8)] "Treatment works" has the meaning
129-15 established by the federal act and the eligible components of the
129-16 management programs established by Sections 319 and 320 of the
129-17 federal act.
129-18 SECTION 5.16. Subchapter J, Chapter 15, Water Code, is
129-19 amended by adding Section 15.6041 to read as follows:
129-20 Sec. 15.6041. FINANCIAL ASSISTANCE UNDER THE SAFE DRINKING
129-21 WATER REVOLVING FUND. (a) The safe drinking water revolving fund
129-22 shall be administered by the board under this subchapter and rules
129-23 adopted by the board. The safe drinking water revolving fund shall
129-24 be held and administered by the board in the same manner as
129-25 provided by Section 15.603, except that the safe drinking water
129-26 revolving fund shall be held and administered in accordance with
129-27 the Safe Drinking Water Act and shall be used to provide financial
129-28 assistance in accordance with that act and in the manner provided
129-29 by rules adopted by the board:
130-1 (1) to political subdivisions for community water
130-2 systems;
130-3 (2) to persons other than political subdivisions for
130-4 community water systems or nonprofit noncommunity water systems
130-5 from the account established by Subsection (b)(1);
130-6 (3) to persons, including political subdivisions, for
130-7 service to disadvantaged communities from the account established
130-8 by Subsection (b)(2); and
130-9 (4) for other purposes authorized by the Safe Drinking
130-10 Water Act.
130-11 (b) In addition to other accounts the board may establish in
130-12 the safe drinking water revolving fund, the board shall establish
130-13 the following separate accounts:
130-14 (1) the community/noncommmunity water system financial
130-15 assistance account, to be used solely for providing financial
130-16 assistance to persons, other than political subdivisions, providing
130-17 services through a community water system or a nonprofit
130-18 noncommunity water system, which account shall be composed solely
130-19 of funds appropriated by the legislature, funds provided as gifts
130-20 or grants by the United States government, interest earnings on
130-21 amounts credited to the account, and repayments of loans made from
130-22 the account; and
130-23 (2) the disadvantaged community account, to be used
130-24 solely for providing financial assistance under the terms of
130-25 Subsections (c) and (d), which account shall be composed solely of
130-26 funds appropriated by the legislature, funds provided as gifts or
130-27 grants by the United States government, interest earnings on
130-28 amounts credited to the account, and repayments of loans made from
130-29 the account.
131-1 (c) The board may provide financial assistance from the
131-2 disadvantaged community account to:
131-3 (1) a political subdivision:
131-4 (A) that is a disadvantaged community; or
131-5 (B) for a project serving an area that:
131-6 (i) is located outside the boundaries of
131-7 the political subdivision; and
131-8 (ii) meets the definition of a
131-9 disadvantaged community; or
131-10 (2) an owner of a community water system that is
131-11 ordered by the commission to provide service to a disadvantaged
131-12 community, provided that the financial assistance is for the sole
131-13 purpose of providing service to a disadvantaged community.
131-14 (d) In providing financial assistance from the disadvantaged
131-15 community account, the board shall determine the amount of a loan
131-16 which the political subdivision cannot repay based on affordability
131-17 criteria established by the board by rule. The board shall forgive
131-18 repayment of that portion of the principal of the loan which the
131-19 board determines the political subdivision cannot repay. Financial
131-20 assistance from the disadvantaged community account may not exceed
131-21 the allowable percentage of the amount of the capitalization grant
131-22 received by the state pursuant to the Safe Drinking Water Act.
131-23 SECTION 5.17. Subsections (c) and (g), Section 15.603, Water
131-24 Code, are amended to read as follows:
131-25 (c) The revolving fund consists of money derived from
131-26 federal grants, direct appropriations, investment earnings on
131-27 amounts credited to the revolving fund, and, at the board's
131-28 discretion, from any and all sources available [to provide the
131-29 required state match for the purposes of this subchapter].
132-1 (g) The revolving fund and any accounts established in the
132-2 revolving fund shall be kept and maintained by or at the direction
132-3 of the board and do not constitute and are not a part of the State
132-4 Treasury. However, at the direction of the board, the revolving
132-5 fund or accounts in the revolving fund may be kept and held in
132-6 escrow and in trust by the comptroller [State Treasurer] for and on
132-7 behalf of the board, shall be used only as provided by this
132-8 subchapter, and pending such use shall be invested in authorized
132-9 investments as provided by any order, resolution, or rule of the
132-10 board. Legal title to money and investments in the revolving fund
132-11 is in the board unless or until paid out as provided by this
132-12 subchapter, the federal act, and the rules of the board. The
132-13 comptroller [State Treasurer], as custodian, shall administer the
132-14 funds strictly and solely as provided by this subchapter and in the
132-15 orders, resolutions, and rules, and the state shall take no action
132-16 with respect to the revolving fund other than that specified in
132-17 this subchapter, the federal act, and the rules of the board.
132-18 SECTION 5.18. Section 341.031, Health and Safety Code, is
132-19 amended to read as follows:
132-20 Sec. 341.031. PUBLIC DRINKING WATER. (a) In order to
132-21 preserve the health, safety, and welfare of the citizens of the
132-22 state, the commission shall ensure that public drinking water
132-23 supply systems:
132-24 (1) provide a continuous, adequate, and safe supply of
132-25 drinking water; and
132-26 (2) are financially stable and technically sound.
132-27 (b) The commission shall encourage and promote the
132-28 development and use of regional and area-wide drinking water supply
132-29 systems.
133-1 (c) Public drinking water must be free from deleterious
133-2 matter and must comply with the standards established by the
133-3 commission[, the United States Public Health Service,] or the
133-4 United States Environmental Protection Agency. The commission may
133-5 adopt and enforce rules to implement the federal Safe Drinking
133-6 Water Act (42 U.S.C. Section 300f et seq.).
133-7 (d) [(b)] In a public place or an establishment catering to
133-8 the public, a common drinking cup may not be used.
133-9 (e) [(c)] Drinking water may not be served except in
133-10 sanitary containers or through other sanitary mediums.
133-11 (f) [(d)] In this section, "common drinking cup" means a
133-12 water or other beverage receptacle used for serving more than one
133-13 person. The term does not include a water or other beverage
133-14 receptacle that is properly washed and sterilized after each use.
133-15 SECTION 5.19. Section 341.035, Health and Safety Code, is
133-16 amended to read as follows:
133-17 Sec. 341.035. APPROVED PLANS REQUIRED FOR PUBLIC WATER
133-18 SUPPLIES. (a) Unless a person is a political subdivision or has
133-19 executed an agreement with a political subdivision to transfer the
133-20 ownership and operation of the water supply system to the political
133-21 subdivision, a [A] person [contemplating] establishing a drinking
133-22 water supply system for public use must submit a business plan to
133-23 the commission for review and approval prior to beginning
133-24 construction demonstrating adequate financial, managerial, and
133-25 technical capability of the system management and ownership. The
133-26 commission may require an applicant to provide financial assurance
133-27 in a form acceptable to the commission to ensure a continuous and
133-28 safe supply of drinking water.
133-29 (b) After the business plan is approved, if one is required,
134-1 but in any case before construction begins, completed plans and
134-2 specifications must be submitted to the commission for review and
134-3 approval in accordance with standards established by the commission
134-4 [before construction of the system]. [The commission shall
134-5 approve plans that conform to the state's water safety laws.] The
134-6 water supply system may be constructed [established] only after
134-7 [on] the commission's approval is received.
134-8 (c) [(b)] Any agency, including a municipality, supplying a
134-9 drinking water service to the public that intends to make a
134-10 material or major change in a water supply system that may affect
134-11 the sanitary features of that utility must give written notice of
134-12 that intention to the commission before making the change.
134-13 (d) [(c)] A water supply system owner, manager, or operator
134-14 or an agent of a water supply system owner, manager, or operator
134-15 may not advertise or announce a water supply as being of a quality
134-16 other than the quality that is disclosed by the commission's latest
134-17 rating.
134-18 (e) [(d)] The commission shall assemble and tabulate all
134-19 necessary data relating to public drinking water supplies at least
134-20 once each year and as often during the year as conditions demand or
134-21 justify. The data forms the basis of an official comparative
134-22 rating of public drinking water supply systems.
134-23 (f) [(e)] A water supply system that attains an approved
134-24 rating is entitled to erect signs of a design approved by the
134-25 commission on highways approaching the municipality in which the
134-26 water supply system is located. The signs shall be immediately
134-27 removed on notice from the commission if the water supply system
134-28 does not continue to meet the specified standards.
134-29 SECTION 5.20. Subchapter C, Chapter 341, Health and Safety
135-1 Code, is amended by adding Section 341.0351 to read as follows:
135-2 Sec. 341.0351. CONTINUOUS AND SAFE DRINKING WATER SUPPLY
135-3 REQUIREMENTS. (a) All drinking water supply systems for public
135-4 use must provide a continuous and safe supply of drinking water
135-5 which meets the requirements of Section 341.031(c).
135-6 (b) If a public drinking water supply system has a history
135-7 of noncompliance or has been subject to enforcement action by the
135-8 commission, the owner or manager of the system may be required to
135-9 demonstrate that financial and technical resources are available to
135-10 ensure future operation of the system in compliance with all
135-11 applicable laws and rules. The commission may require submission
135-12 of a business plan demonstrating the financial, managerial, and
135-13 technical capability of the system management and ownership. The
135-14 commission may require the owner of the system to provide financial
135-15 assurance in a form acceptable to the commission to ensure a
135-16 continuous and safe supply of drinking water.
135-17 (c) A public water supply system which has been constructed
135-18 without approval as required under Section 341.035 or which the
135-19 executive director of the commission determines presents an
135-20 imminent health hazard may be required to temporarily cease
135-21 operations on receipt by either mail or hand delivery of a letter
135-22 from the commission or the executive director ordering cessation of
135-23 operations. Operations may not resume until authorized by the
135-24 commission or the executive director. A public water system
135-25 ordered to cease operations under this subsection is entitled to an
135-26 expedited hearing before the commission on written request.
135-27 SECTION 5.21. Subsections (a) and (b), Section 341.047,
135-28 Health and Safety Code, are amended to read as follows:
135-29 (a) A person commits an offense if the person:
136-1 (1) violates a provision of Section 341.031;
136-2 (2) violates a provision of Section 341.032(a) or (b);
136-3 (3) violates a provision of Section 341.033(a)-(f);
136-4 (4) constructs a drinking water supply system without
136-5 submitting completed plans and specifications as required by
136-6 Section 341.035(b) [341.035(a)];
136-7 (5) establishes a drinking water supply system without
136-8 the commission's approval as required by Section 341.035(a) or (b);
136-9 (6) violates a provision of Section 341.035(c)
136-10 [341.035(b)] or (d) [(c)];
136-11 (7) fails to remove a sign as required by Section
136-12 341.035(f) [341.035(e)]; or
136-13 (8) violates a provision of Section 341.036.
136-14 (b) An offense under Subsection (a) is a Class C misdemeanor
136-15 [punishable by a fine of not less than $100].
136-16 SECTION 5.22. Section 341.048, Health and Safety Code, is
136-17 amended to read as follows:
136-18 Sec. 341.048. CIVIL ENFORCEMENT. (a) A person may not
136-19 cause, suffer, allow, or permit a violation of this subchapter or a
136-20 rule or order adopted under this subchapter.
136-21 (b) A person who causes, suffers, allows, or permits a
136-22 violation under this subchapter shall be assessed a civil penalty
136-23 of not less than $50 nor more than $10,000 [$500] for each
136-24 violation. Each day of a continuing violation is a separate
136-25 violation.
136-26 (c) [If it is shown on a trial of the defendant that the
136-27 defendant has previously been assessed a civil penalty under this
136-28 section within a year before the date on which the violation being
136-29 tried occurred, the defendant shall be assessed a civil penalty of
137-1 not less than $50 nor more than $1,000 for each subsequent
137-2 violation under this subchapter. Each day of a continuing
137-3 violation is a separate violation.]
137-4 [(d)] If it appears that a person has violated, is
137-5 violating, or threatens to violate a provision under this
137-6 subchapter, the commission, a county, or a municipality may
137-7 institute a civil suit in a district court for:
137-8 (1) injunctive relief to restrain the person from
137-9 continuing the violation or threat of violation;
137-10 (2) the assessment and recovery of a civil penalty; or
137-11 (3) both injunctive relief and a civil penalty.
137-12 (d) [(e)] The commission is a necessary and indispensable
137-13 party in a suit brought by a county or municipality under this
137-14 section.
137-15 (e) [(f)] On the commission's request, the attorney general
137-16 shall institute a suit in the name of the state for injunctive
137-17 relief, to recover a civil penalty, or for both injunctive relief
137-18 and civil penalty.
137-19 (f) [(g)] The suit may be brought in Travis County, in the
137-20 county in which the defendant resides, or in the county in which
137-21 the violation or threat of violation occurs.
137-22 (g) [(h)] In a suit under this section to enjoin a violation
137-23 or threat of violation of this subchapter, the court shall grant
137-24 the state, county, or municipality, without bond or other
137-25 undertaking, any injunction that the facts may warrant including
137-26 temporary restraining orders, temporary injunctions after notice
137-27 and hearing, and permanent injunctions.
137-28 (h) [(i)] Civil penalties recovered in a suit brought under
137-29 this section by a county or municipality shall be equally divided
138-1 between:
138-2 (1) the state; and
138-3 (2) the county or municipality that first brought the
138-4 suit.
138-5 SECTION 5.23. Subsection (a), Section 341.049, Health and
138-6 Safety Code, is amended to read as follows:
138-7 (a) If a person causes, suffers, allows, or permits a
138-8 violation of this subchapter or a rule or order adopted under this
138-9 subchapter, the commission may assess a penalty against that person
138-10 as provided by this section. The penalty shall not be less than
138-11 $50 nor more than $10,000 [$500] for each violation. Each day of a
138-12 continuing violation may be considered a separate violation.
138-13 ARTICLE 6. WATER DATA COLLECTION AND DISSEMINATION
138-14 SECTION 6.01. Section 16.012, Water Code, is amended to read
138-15 as follows:
138-16 Sec. 16.012. STUDIES, INVESTIGATIONS, SURVEYS. (a) The
138-17 executive administrator shall make studies, investigations, and
138-18 surveys of the occurrence, quantity, quality, and availability of
138-19 the surface water and groundwater of this state and shall, in
138-20 cooperation with other entities of the state, guide the development
138-21 of a statewide water resource data collection and dissemination
138-22 network. For these purposes the staff shall collect, receive,
138-23 analyze, [and] process, and facilitate access to basic data and
138-24 summary information concerning [the] water resources of the state
138-25 and provide guidance regarding data formats and descriptions
138-26 required to access and understand Texas water resource data.
138-27 (b) The executive administrator shall:
138-28 (1) determine suitable locations for future water
138-29 facilities, including reservoir sites;
139-1 (2) locate land best suited for irrigation;
139-2 (3) make estimates of the cost of proposed irrigation
139-3 works and the improvement of reservoir sites;
139-4 (4) examine and survey reservoir sites; [and]
139-5 (5) investigate the effects of fresh water inflows
139-6 upon the bays and estuaries of Texas;
139-7 (6) investigate instream flows including groundwater
139-8 resources hydrologically connected to ecologically sensitive areas;
139-9 (7) lead a statewide effort, in coordination with
139-10 federal, state, and local governments and other interested parties,
139-11 to develop a network for collecting and disseminating water
139-12 resource-related information that is sufficient to support
139-13 assessment of ambient water conditions statewide;
139-14 (8) make recommendations for optimizing the efficiency
139-15 and effectiveness of water resource data collection and
139-16 dissemination as necessary to ensure that basic water resource data
139-17 are maintained and available for Texas; and
139-18 (9) make basic data and summary information developed
139-19 under this subsection accessible to state agencies and other
139-20 interested persons.
139-21 (c) All entities of the state that collect or use water data
139-22 or information shall cooperate with the board in the development of
139-23 a coordinated, efficient, and effective statewide water resource
139-24 data collection and dissemination network.
139-25 (d) The executive administrator shall keep full and proper
139-26 records of his work, observations, data, and calculations, all of
139-27 which are the property of the state.
139-28 (e) [(d)] In performing his duties under this section, the
139-29 executive administrator shall assist the commission in carrying out
140-1 the purposes and policies stated in Section 12.014 of this code.
140-2 SECTION 6.02. Section 16.021, Water Code, is amended to read
140-3 as follows:
140-4 Sec. 16.021. TEXAS NATURAL RESOURCES INFORMATION SYSTEM.
140-5 (a) The executive administrator shall establish the Texas Natural
140-6 Resources Information System (TNRIS) to serve Texas agencies and
140-7 citizens as a centralized clearinghouse and referral center for
140-8 natural resource, census, and other socioeconomic data [as a
140-9 centralized information system incorporating all Texas natural
140-10 resource data, socioeconomic data related to natural resources, or
140-11 indexes related to that data that is collected by state agencies or
140-12 other entities].
140-13 (b) The Texas Geographic Information Council (TGIC) [Natural
140-14 Resources Information System Task Force] is created to provide
140-15 strategic planning and coordination in the acquisition and use of
140-16 geo-spatial data and related technologies in the State of Texas.
140-17 The executive administrator and the executive director of the
140-18 Department of Information Resources shall designate entities to be
140-19 members of the TGIC. The chief administrative officer of each
140-20 member entity shall select one representative to serve on the TGIC.
140-21 The duties of the TGIC shall include providing guidance to the
140-22 executive administrator in carrying out his duties under this
140-23 section and guidance to the Department of Information Resources for
140-24 development of rules related to statewide geo-spatial data and
140-25 technology standards. [The task force is composed of one
140-26 representative from each state agency designated by the executive
140-27 administrator. The executive administrator shall designate a state
140-28 agency as a participant in the task force if the agency collects or
140-29 uses natural resource and related socioeconomic data.
141-1 Representatives of each designated agency shall be selected by the
141-2 chief administrative officer of that agency.]
141-3 (c) Under the guidance of the TGIC [Texas Natural Resources
141-4 Information System Task Force], the executive administrator shall:
141-5 (1) further develop [and implement] the Texas Natural
141-6 Resources Information System by promoting and providing for
141-7 effective acquisition, archiving, documentation, indexing, and
141-8 dissemination of natural resource and related digital and
141-9 nondigital data and information;
141-10 (2) obtain information in response to disagreements
141-11 regarding names and name spellings for natural and cultural
141-12 features in the state and provide this information to the Board on
141-13 Geographic Names of the United States Department of the Interior;
141-14 (3) make recommendations to the Board on Geographic
141-15 Names of the United States Department of the Interior for naming
141-16 any natural or cultural feature subject to the limitations provided
141-17 by Subsection (d) of this section;
141-18 (4) make recommendations to the Department of
141-19 Information Resources to adopt and promote standards that
141-20 facilitate sharing of digital natural resource data and related
141-21 socioeconomic data among federal, state, and local governments and
141-22 other interested parties;
141-23 (5) acquire and disseminate natural resource and
141-24 related socioeconomic data describing the Texas-Mexico border
141-25 region; and
141-26 (6) coordinate, conduct, and facilitate the
141-27 development, maintenance, and use of mutually compatible statewide
141-28 digital base maps depicting natural resources and man-made
141-29 features.
142-1 (d) A recommendation may not be made under Subdivision (3)
142-2 of Subsection (c) of this section for:
142-3 (1) a feature previously named under statutory
142-4 authority or recognized by an agency of the federal government, the
142-5 state, or a political subdivision of the state;
142-6 (2) a feature located on private property for which
142-7 consent of the property owner cannot be obtained; or
142-8 (3) naming a natural or cultural feature for a living
142-9 person.
142-10 SECTION 6.03. On September 1, 1997, the Texas Natural
142-11 Resources Information System Task Force and the Texas Geographic
142-12 Information Systems Planning Council are merged into the Texas
142-13 Geographic Information Council. All designated member agencies of
142-14 both predecessor entities shall continue to serve as member
142-15 agencies of the Texas Geographic Information Council.
142-16 ARTICLE 7. EFFECTIVE DATE; EMERGENCY
142-17 SECTION 7.01. (a) Except as provided by Subsections (b)
142-18 through (e) of this section, this Act takes effect September 1,
142-19 1997.
142-20 (b) This section and Sections 1.04, 2.03, 2.09, 2.10, and
142-21 2.13 of this Act take effect immediately.
142-22 (c) Section 3.54 of this Act takes effect on the first day
142-23 of the first calendar quarter beginning on or after the date that
142-24 it may take effect under Section 39, Article III, Texas
142-25 Constitution.
142-26 (d) The change in law made by Section 3.54 of this Act to
142-27 Section 151.318, Tax Code, does not affect taxes imposed before the
142-28 effective date of Section 3.54 of this Act, and the law in effect
142-29 before the effective date of that section is continued in effect
143-1 for purposes of liability for and collection of those taxes.
143-2 (e) Sections 4.03 and 4.05 through 4.08 of this Act take
143-3 effect on the date on which the constitutional amendment proposed
143-4 by _.J.R. No. ___, 75th Legislature, Regular Session, 1997, takes
143-5 effect. If that amendment is not approved by the voters, those
143-6 sections have no effect.
143-7 SECTION 7.02. The importance of this legislation and the
143-8 crowded condition of the calendars in both houses create an
143-9 emergency and an imperative public necessity that the
143-10 constitutional rule requiring bills to be read on three several
143-11 days in each house be suspended, and this rule is hereby suspended,
143-12 and that this Act take effect and be in force according to its
143-13 terms, and it is so enacted.